When preparing a will, a lawyer owes a duty of care to the testator to advise them on the possibility of a family provision claim. However, as Badenach v Calvert demonstrates, this duty does not impose any obligation upon the lawyer to advise the testator of the steps which can be taken to mitigate the possibility of a family provision claim.
In NSW, under the Succession Act and pursuant to Practice Note SC Eq 7 – Family Provision, unless the court orders otherwise, all family provision claims must go through mediation before the matter can proceed to a final hearing.
IIn NSW, under s 57(1)(d) of the Succession Act, your Former Spouse (or De Facto Partner) may be Eligible to Contest your Will. However, your Ex will only be deemed an Eligible Person where there are Factors Warranting the making of the application. The case of Lodin v Lodin provides a useful discussion as to what will constitute factors which warrant the making of an application.
It is common for testators to transfer property or assets to their intended beneficiaries prior to their death, in an effort to avoid any potential challenges to their will. The logic being that an applicant will be unable to challenge the will where the estate has no real value. However, in NSW transferring your assets before your death will not necessarily prevent a family provision claim from being made against your estate and in particular circumstances the court may make a Notional Estate Order.
Family Provision was traditionally seen as a means of giving effect to a testator's moral obligations or duties to provide for their dependants and family members. While, this approach has been questioned, the relevance of moral obligations or duties to family provision claims was confirmed in Vigolo v Bostin.
In NSW, parents are under no legal obligations to leave an inheritance for their adult children. However, the succession legislation is underpinned by the assumption that children are the natural beneficiaries of their parents' estates and adult children are automatically eligible to contest a will under family provision.
The costs of contesting a will, particularly where the applicant is successful, are generally paid out of the estate. However, as Coote v Coote illustrates, where the estate is modest the costs of a successful claim can significantly reduce the value of the estate. If you are contemplating contesting a will you need to ask yourself: Will it Cost More Than its Worth?
Singer v Berghouse establishes the two-stage approach which the court should take in assessing a family provision claim. However, Singer v Berghouse was decided with regard to the Family Provisions Act 1982 (NSW) and its applicability to the current NSW Legislation, the Succession Act, has been questioned.
Where a deceased dies without a will the rules of intestacy will apply and the deceased's closest relative will inherit their estate. This raises the question: Is it possible to contest the distribution of the estate where there is no will?