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family provision applicationA common way of contesting a will is by filing a Family Provision Application

A Family Provision Application is an application to the court by a relevant person seeking a further portion of the deceased person’s estate then they were allocated under the will. The claim is based upon the premise that the deceased person did not make “adequate provision” for the applicant’s “proper maintenance and support”.

Who Can Contest A Will?

Any of the following people can contest a will by bringing a family provision application:

  • A Spouse (includes a de facto spouse);
  • Children (biological, adopted or step-child); or
  • Dependents.

Time Limitations

In order to contest a Will by family provision application, a person must provide notice to the executor of their intention to contest a will within 6 months from the date of the deceased’s death. Subsequently, they must file their application within 9 months from the date of death.

Basis for Contesting a Will

family provision application

In order to be successful at contesting a Will by filing a Family Provision Application, a person will need to show the following:

  1. The deceased person has failed to make adequate provision for the proper support or maintenance of the Applicant. This means that a person will need to show the court that they have a greater need for more assets than was provided for in the Will at the time of death; and
  2. If the court finds that adequate provision should have been made then the court will then determine what if any provision should be made for the applicant. In other words, the court will look at the applicant’s personal financial circumstances and consider whether they are in need of support.

To determine the basis for contesting a Will, the court will take into account the following factors:

  • The size of the estate
  • The Applicant’s financial position, age and health
  • The relationship between the Applicant and the deceased
  • Any support given by the deceased
  • Any discussions regarding intention within the will
  • Any disproving conduct on the part of the Applicant

Are you worried your DIY Will kit is not legal? See our article for more information.

Whether you are seeking advice on contesting a will or you are defending an application, Forge Legal’s professional Wills and Estates team is best placed to navigate the court process and procedures to get the outcome that you are rightfully entitled to.

Get in touch with our team today for more help.

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