Bringing a claim under the Family Provision Act

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The Family Provision Act 1972 (WA) (‘The Act’) allows the family and dependents of deceased persons to apply for a share in the deceased estate in circumstances where the deceased person’s will would not ordinarily entitle them to a share in that estate. The Court will not reapportion the deceased person’s estate to make the distribution fairer but it will assist applicants if the original provision was inadequate for their maintenance and support in life.

Who is entitled to apply?

The following persons may apply under the legislation:

  • a spouse or partner;
  • children;
  • grandchildren;
  • parents; and
  • stepchildren

of the deceased.

An application can be brought by one of the people above or by another person on their behalf.[1] Contrary to the usual practice when beginning proceedings, notice of the application does not have to be served on the other persons who are also entitled to make applications unless the Court directs that this be done.[2]

What are the grounds for a proper application?

A person may make an application under the Act on the grounds that the deceased person’s will makes inadequate provision for their proper maintenance, support, education or advancement in life. If the Court finds in favour of the application it has a wide discretion to order a different provision of the Estate it sees as more appropriate.[3]

The Estate of Michael Wright

One of the best known cases in recent years is that of Mead v Lemon (as the executor of the estate of Wright) [2015] WASC 71. Michael Wright’s daughter Olivia Mead contested the $3 million provision left to her on the grounds of inadequacy. At first instance she was awarded $25 million on the basis that the estate was ‘colossal’ and that this amount would mean ‘the plaintiff and her relatives w[ould] never want for anything again’ without affecting the position of the other beneficiaries.[4] However on appeal in the Supreme Court last year the award was reduced to $6.142 million on the basis such measures adequately provided for Ms Mead’s maintenance and support.[5]

The Court will only hear an application if it is brought before them within 6 months after the administrator becomes entitled to administer the estate, or if it is otherwise satisfied that justice requires the applicant to be heard out of time.[6]

The Court will not make provision if this would be detrimental to a person who has already received assets distributed from the estate in good faith and that person has acted in reliance on having an indefeasible title to those assets.

There is therefore a requirement on an applicant to bring any application quickly.

The Court has a wide discretion to order that different provisions be made out of a deceased estate. However the Court will only do so when the person applying has received inadequate provision for their maintenance and support in life. If you need assistance with a Family Provision Act application, please get in touch.

 

[1] Family Provision Act 1972 (WA) s 7(1).

[2] Family Provision Act 1972 (WA) s 12(1).

[3] Family Provision Act 1972 (WA) s 6(1).

[4] Mead v Lemon (as the executor of the estate of Wright) [2015] WASC 71 [6], [65].

[5] Lemon v Mead [2017] WASCA 215 [248].

[6] Family Provision Act 1972 (WA) s 7(2).

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