The Inheritance (Family and Dependants Provision) Act 1972 (WA) allows an eligible person to make a claim against a deceased’s person’s estate where adequate provision was not made for the proper maintenance, support, education or advancement in life of the applicant. A claim under this act may be made regardless of whether the deceased executed a will or died intestate (without a will).The court is given a wide discretion to make adequate provision and may override the provisions of a will when necessary. Although the discretion given is broad, the court usually exercises its powers cautiously in order to avoid unnecessarily ‘re-writing the will’ of the deceased.
It is important to remember that this claim is not available to just anyone. Only ‘eligible persons’ may apply. Eligible people include the husband, wife or de facto spouse of the deceased immediately before their death, the deceased’s children, a parent of the deceased and a grandchild who waswholly or partly maintained by the deceased at the time of his or her death. A person not married to the deceased at the time of their death, like an ex-husband or ex-wife, may not make a claim unless they were entitled to or were receiving maintenance at the time of the deceased’s death. A family lawyer in Perth can provide you with assistance to determine if you are so entitled.
The court usually undertakes a two stage process when considering an Inheritance (Family and Dependants Provision) Act claim. First, it will determine whether adequate provision was made for the applicant by the deceased’s will or the law of intestacy. The Court will take into account the applicant’s financial position, the size and nature of the deceased’s estate, the totality of the relationship between the applicant and the deceased and the relationship between the deceased and other persons who have legitimate claims upon his or her ‘bounty’. This first stage is not just a formality; the court must be satisfied that adequate provision was not made before it can move onto the second stage.
Having decided that adequate provision was not made, the Court will next determine what provision ought to be made in the circumstances of the case. This is an exercise of absolute discretion and the court may find that no provision ought to be made in the circumstances. The court will also not necessarily grant a ‘wish list’ but will focus only on what is appropriate for the proper maintenance, support, education or advancement in life of the applicant. The court has regard to the competing claims on the estate and will more readily disturb a provision in favour of a beneficiary with whom a testator had no connection (such as a charity) than one in favour of a dependent relative.
Although it is important to bear this claim in mind when drafting a will, it is not possible to exclude an Inheritance (Family and Dependants Provision) Act claim through a will. The only effective way to exclude property from such a claim to dispose of the property during your lifetime. The most common way of doing this is by creating a trust. A family lawyer in Perth can provide you with advice and assistance in estate planning to address these issues.