To demonstrate financial need and enable to court to determine the provision which the applicant should have received, the applicant must provide full and frank disclosure of their financial affairs.
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?
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.
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.
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.
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.
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?
Pursuant to s 60(2)(j) of the Succession Act, the court may have regard to any evidence of the deceased’s testamentary intentions when determining a family provision claim. However, as is illustrated in Armitage v Fraser the key question before the court is whether adequate or proper provision has been made for the applicant. In this inquiry, evidence as to the deceased’s intentions will not be determinative.
A person living in a Close Personal Relationship with the deceased at the time of the deceased’s death is eligible to claim family provision. Under the Succession Act a Close Personal Relationship will be established where the parties were living together and either or both parties were providing the other with domestic support and personal care. These requirements were considered in Smoje v Forrester.
Pursuant to s 57(1)(e) of the Succession Act, persons who were Members of the Deceased Household and were Dependant on the Deceased are eligible to make a Family Provision Claim provided that there are Factors which Warrant the making of the Application. Here, Olivera, the Deceased’s Mistress, and James, Olivera’s son from a previous relationship, made a Family Provision Application on the grounds that they were Members of the Deceased’s Household.