Wills, Intestacies, Estates and Funerals

Family Provision

The principles relating to family provision are laid down in the Family Provision Act 1969 (ACT) ('the Family Provision Act').

While it is true that a testator is free to leave her or his property to whoever he or she wishes, there is a statutory provision in the ACT and in all other jurisdictions in Australia, which provides that an "eligible person" who has been left "without adequate provision for proper maintenance" may apply to the court for an order making adequate provision for proper maintenance for the eligible person out of the testator's estate. In the ACT an eligible person means the deceased's "spouse", "eligible partner", "domestic partner", child, grandchild, former wife or former husband, stepchild or parent. The definitions of some of these relationships are given in Glossary of Legal Words Used. The deceased's former husband or former wife, or stepchild, are entitled to claim only if he or she was maintained by the deceased immediately before the deceased person's death. Special limitations also apply to parents and grandchildren of the deceased. Ex-nuptial children may claim.

If the Supreme Court is satisfied that the deceased person had a moral duty to make such provision for the applicant, and that the will (or the intestacy laws, if the deceased left no will) does not do so, the court can in effect make a codicil to the will (or modify the operation of the intestacy laws) to ensure that adequate provision for proper maintenance is made for the applicant out of the deceased person's estate. The court's order does not cancel the will, it operates as a codicil to the will and leaves the will operating to the extent that it is unaffected by the court's order. So, for example, a court may order that the testator's estate provide the family home to the surviving spouse where the testator, for reasons of her or his own, left the family home to some other person. The rest of the will would continue to operate as the testator intended. Nevertheless, when the court does make an order, particularly if the estate is not large, the effect is more or less to make shipwreck of the testator's intentions.

If a testator has strong reasons for leaving some close relative out of the will the testator should discuss the matter with the professional will drafter. If there are good reasons for disinheriting a close member of the family, there are steps which can be taken to ensure that that person is in fact excluded from the estate, but the question is a delicate one, and professional advice is needed.

You must make any claims for family provision within 12 months after the grant of probate or letters of administration, unless the court is prepared to grant you an extension. If you feel that you have been unfairly treated by a will of a family member and that you may be an "eligible person" in the sense described above, you should consult a solicitor urgently.

Whether or not an order is made depends on all the circumstances of the case, and even adult children who are able to support themselves frequently secure orders.