A prenup, or a Binding Financial Agreement (BFA) as they are known in Australia, will usually include a clause providing that either or both parties give up their right to make a family provision claim. But do these clauses actually prevent your partner, or former partner, from claiming family provision?
A testator may leave their estate to whomever they wish, including to any charitable organisations. However, where an estate is left to a charity instead of family members, it is often contested under the family provision regime.
To establish a Close Personal Relationship to make a family provision claim, applicants must show both that either or both parties were providing the other with domestic support and personal care and that they were living together. Begging the question, what constitutes 'living together' for the purposes of family provision.
It is not uncommon for a person to own real and personal property not just in the state they live in, but also in other states or even other countries. Where a deceased’s persons’ assets are spread across state borders, questions arise as to the appropriate jurisdiction to commence a family provision claim.
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.