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Who can contest a Will?

Any one of the following people may be entitled to claim under the Family Provision Act for greater provision out of an estate:

  • Spouse
  • Children
  • Parents
  • De facto partner.

In certain cases, stepchildren, grandchildren, former spouses and former de facto partners are also entitled to claim.

If a claim is made, it is up to the court to decide if the Will (or if there is no Will, the law relating to intestacy) has made adequate provision for the claimant. If not, the court may order that provision be made out of the estate.

If you are excluding any of these dependents from your Will, it is important that you record the reasons by either inserting a clause in the Will, or alternatively, placing a signed statement with the Will.

In the event of a claim, your views will be considered by the court when making its decision. However, there is no guarantee that the court will not award part of the estate to the claimant. The court's powers in such cases are in-part discretionary.

If you appoint the Public Trustee as your Executor, they will take a neutral role in the court proceedings and leave it to the court to make a decision. It is the usual practice of the court to join the beneficiaries as parties to the action. They are then given the opportunity to oppose the claim.

Claims must be made within six months from the date upon which administration or probate is granted. In some circumstances, the court may accept an application outside the six months.

Last updated: 15-Apr-2019

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