All jurisdictions in Australia (including WA) permit eligible persons to contest a will if they can demonstrate that they have been left without adequate provision. In Western Australia, an eligible person includes:
- a spouse or de facto partner;
- a person receiving or entitled to receive maintenance from the deceased as a former spouse or de facto partner;
- a child of the deceased;
- a grandchild of the deceased, in specified circumstances;
- a stepchild of the deceased, in specified circumstances; and
- a parent of the deceased.
In a successful claim the Court can adjust the will to satisfy the claim in whole or part. When contesting a will, a de facto partner must first establish the existence of the actual relationship. He or she will then need to establish the lack of adequate provision. Claims will ordinarily need to made within 6 months of the death of the deceased person. Each claim will be assessed based on a range of factors and the unique circumstances of each case.
What exactly is a de facto relationship?
A de facto relationship exists where a couple live together in a marriage-like relationship. Factors considered in establishing a de facto relationship include the length of it, the care and support of children, the nature and extent of a common residence, the existence of a sexual relationship, financial interdependence, property acquisition and ownership, and the public perception of the relationship.
What must an applicant prove in a family provision claim?
An applicant must prove that he or she has been left without adequate provision for his or her proper maintenance, education and advancement in life. A claim may be made because the applicant was completely left out of the will or that, in light of the applicant’s financial needs, the inheritance proposed is insufficient to support their needs. Whilst every case is different, the matters that a Court usually considers in family provision claims by a de facto include:
- the length of the de facto relationship;
- whether the applicant received any benefit from the deceased’s life insurance or superannuation payments;
- the respective financial and non-financial contributions of the applicant and the deceased to the estate assets;
- the personal circumstances of the applicant such as his or her education, employment, age, health and any special needs;
- the financial position and financial needs of the applicant;
- the personal circumstances, financial position and financial needs of the deceased’s children or other beneficiaries or applicants; and
- whether there were joint assets transferred to the applicant after the deceased’s death.
Finally, if you have read this far and still have queries or if you think that you will need some practical advice about your situation, then now is probably the time to get in touch. Austral Legal can help and we offer an initial discounted 30-minute SmartMove appointment for $80 by phone or in person at our office to discuss your situation.