Family provision applications

If there is no evidence of impropriety in relation to the making of the will, but a relative, dependant or partner believes that the will is unfair because it does not adequately provide for them, then the person may apply to the Supreme Court to vary the will or the distribution of the estate (Family Provision Act 1972).  

The application must be brought within 6 months of the grant of probate. 

The Court must determine:

  • whether the person is an “eligible person” under section 7 of the Family Provision Act 1972. This includes a partner or de facto partner and children and certain stepchildren and grandchildren. 
  • whether the person has been left without the specified level of provision (Singer v Berghouse (No 2) (1994) 181 CLR 201).  The court will consider whether the will makes adequate provision for the proper maintenance, support, education or advancement in life of the person (Family Provision Act 1972 s 6).

 

Example

Janet Jones died at the age of 69 from a heart attack. She had divorced 20 years earlier and not remarried. Janet's and her former husband had 2 children.

The total value of Janet's estate is $3,000,000, made up of the house that she lived in and 2 investment properties. 

When she split up with her husband 1 of her children took her husband's "side" in what was an acrimonious divorce. Her relationship with that child has gotten better over time, but never been as close relationship as with her other child.

In her will Janet left 90% of her estate to the child to whom she was closer and 10% to the other child. 

The other child works in a job that does not pay much, has 5 children and hardly any assets.

The child who received 90% of the estate is well off. She married into a wealthy family. Her children are themselves now adults and are no longer dependent on her financially. 

The child who received 10% of the estate seeks advice about making an application to the Supreme Court for family provision on the basis that her late Mother failed to make adequate provision for her in her will.