In the world of probate in Western Australia, distributing a deceased person’s assets can sometimes become contentious. One aspect that often sparks disputes is the potential for family provision claims. These claims allow certain family members and dependents to contest a will if they believe they have not been adequately provided for. In this blog, we will delve into the provisions for family provision claims in Western Australia, discussing who can make a claim and offering insights on how to defend against them.
Understanding Family Provision Claims in the Context of Probate in Western Australia
Family provision claims, also called “testator family maintenance” claims, are an integral part of the probate in Western Australia. These legal actions empower individuals who believe they have been unfairly treated in a deceased person’s will to seek a more equitable share of the estate. Governed by the Family Provision Act 1972 in Western Australia, these claims aim to ensure that close family members and dependents are adequately provided for following the death of the testator, who is the individual who created the will.
Who Can Make a Claim?
- Spouses or De Facto Partners: One of the primary categories of eligible claimants includes the deceased’s spouses or de facto partners. It encompasses individuals legally married to the dead at the time of their death, as well as those in a de facto relationship with them.
- Children: The definition of “children” in this context extends to natural or biological children, adopted children, and stepchildren of the deceased. These individuals have the legal standing to make a family provision claim.
- Former Spouses or De Facto Partners: If a person was once married to or in a de facto relationship with the deceased and has not remarried or entered into another de facto relationship, they may also be eligible to make a claim.
- Financially Dependent Individuals: Those who were economically dependent on the deceased at the time of their passing may be eligible to make a family provision claim. This category includes individuals who rely on the dead for financial support and can demonstrate their dependence.
Time Limit for Making a Claim
It’s crucial to be aware of the time limitations associated with family provision claims in Western Australia, as outlined in the Family Provision Act 1972. Generally, a claim must be lodged within six months from the date of probate. However, it’s important to note that the court can grant extensions in exceptional circumstances. Failing to adhere to this time limit may jeopardise one’s ability to contest the will.
Defending Against Family Provision Claims in Western Australia
When faced with a family provision claim during the probate in WA, the executor or beneficiaries of the will must be prepared to defend the deceased’s intentions and the proposed distribution of the estate. Here are the steps to consider:
- Seek Legal Counsel: The first and most crucial step is to consult with an experienced probate lawyer in Western Australia who specialises in family provision claims. They can provide essential legal guidance, assess the claim’s merits, and help you understand your rights and responsibilities.
- Gather Comprehensive Evidence: Building a solid case requires the collection of ample evidence. This evidence should support the deceased’s intentions as outlined in the will and demonstrate the fairness of the proposed distribution. Relevant documentation may include records of the dead’s financial situation, any documentation supporting their relationship with the claimant, and any reasons the testator provides for their decisions regarding the will.
- Negotiation as an Option: Sometimes, it may be possible to settle with the claimant through bargaining. Negotiating a settlement can save both parties time, emotional distress, and legal expenses compared to a full court proceeding. However, it’s crucial to approach negotiations cautiously and with legal advice for probate in Tasmania.
- Prepare for Court Proceedings: If negotiations fail to yield a settlement, it is essential to be fully prepared for a court hearing. Your probate lawyer will guide you through this process, ensuring that all necessary legal documents are filed, and they will represent your interests before the judge. Be prepared to examine the evidence and arguments during the court proceedings thoroughly.
- Assessing the Claim’s Merits: Evaluating the merits of the family provision claim is crucial. Understanding the strength of the claimant’s case and the potential risks and costs associated with contesting it can inform your strategy. Your probate lawyer can assist in this assessment during the procedure of probate in Tasmania.
- Executor’s Duty: Executors have a fiduciary duty to administer the estate impartially and by the law. Executives must act in the estate’s and beneficiaries’ best interests, not favouring one party over another.
- Contesting the Claim: When defending against a family provision claim may involve challenging the claimant’s assertions, such as their financial dependency, the nature of their relationship with the deceased, or the adequacy of the provision made for them in the will.
Navigating family provision claims in the context of probate in Western Australia can be complex and emotionally challenging. Understanding who can make a claim and how to defend against such claims is crucial. Seeking legal advice early in the process is essential to protect the deceased’s intentions and the rightful distribution of their estate. Remember that each case is unique, and professional guidance is critical to a successful outcome.
