Family Provision Act  

The Family Provision Act NSW (1982) is designed to assure the family of a deceased person that adequate provision has been made for the family in the will. In essence, this insurance means that if you are dependent upon a person who dies, and if after their death no adequate provision is made for you in the will, you have certain rights to access the property of the deceased person to provide for your well-being.  

So, what does this actually mean in practice? The process involved is commonly known as "challenging the will" and there are a number of steps which must be considered before any relief will be granted. What follows is general information only and should definitely not be taken as advice. For advice on your specific circumstances you should seek direct legal advice.

Who can apply for relief under the FPA?  

The legislation refers to "eligible persons". This group of people is quite carefully defined and it is best to refer to directly to the legislation or seek legal advice if you are considering taking action under the Act. To summarise, the Act states that an eligible person needs to have had one of the following relationships to the deceased:

wife or husband

partner living in a domestic relationship

child

grandchild living the in same household as the deceased

former wife or husband

whole or partial dependence on the deceased

The category referring to partners living in domestic relationships encompasses de facto couples and includes same sex couples.

If a person fall into one of the categories, is relief automatic?  

The short answer to this question is: not necessarily. There are several key issues that must be addressed before any person can access an estate through the Family Provision Act.

Has some provision already been made in the will for the person who is challenging?

Is there a need for provision to assist the challenger with what is termed the "maintenance, education or advancement in life" of the challenger?

Do any other people have competing claims to entitlement?

If the relationship is one of dependent grand-child the Court will ask: Did the circumstances suggest that the challenger ought to be a beneficiary?

Has the challenger avoided any conduct which was contrary to the interests of the deceased person while they were still alive?

Is the estate of sufficient size to support the extra payments which will eventuate should provision be made under the Act?

It is clear that there are numerous considerations for the Court to take into account. The law is structured in this way so that, in theory at least, only those with valid claims are able to gain access to the assets of a deceased person.

How can a Will be drafted to exclude challenges under the Family Provision Act?  

It is not possible to draft a will to completely exclude challenges. At the most basic level, the Act is structured so that any eligible person can challenge the will regardless of how much money was left to them in the will. BUT, although the right to challenge is almost always present, this does not mean that all challenges result in additional provision. The challenger must support their claim, by answering the questions outlined above. It is important to remember here that the purpose of the law is to ensure that dependent persons are adequately provided for, but also to ensure that the wishes of the deceased are respected. The best approach when drafting a will is to approach the matter with fairness towards the various parties concerned. If a reasonable distribution has been made and there is reasoning to support that distribution, the will is more likely to withstand a challenge. It is wise to seek legal advice when making these decisions to ensure that you arrive at the right outcome.

What other steps can be taken?  

It is possible to draft formal agreements stating that one party will make no challenge to the will of the other party. These can then be registered with the Supreme Court, and if formalised in this manner, they will be effective to prevent the Will being challenged by that specific person. If you specifically wish to exclude someone from your will, a statutory declaration setting out the reasons for this decision can be used to contest the challenge if this arises. These steps can be complicated, and if you are considering these measures you should seek legal advice about your specific situation.

Conclusion  

The Family Provision Act is designed, as its name suggests, to provide for families. The idea is to ensure that people are not left stranded by the death of someone upon whom others depended. It is true, some steps can be taken to limit access to an estate beyond the provisions in the will. However, it is wise to seek the advice of a solicitor or trustee when drafting a will. By making careful decisions at this point, it is possible to avoid conflict during what is likely to be the emotionally difficult period following the death of a loved one.