The long-enduring myth of the token legacy, where the deceased chose to leave a dollar to a child in order to indicate that, while not forgotten, they were being intentionally left out, has been contestable in South Australia for over a century.
How do I contest a Will?
While there are ways to contest a Will on the basis of it being invalidly made, if the Will was made properly, then the Inheritance (Family Provision) Act 1972 (SA) (IFP Act) operates to provide an avenue to make a claim against a deceased’s estate for provision that was otherwise not made in their final Will. The IFP Act allows for the children of the deceased, a spouse (or former), their siblings or even parents to make a family provision claim.
The IFP Act gives the Court the power to, in essence, interfere in the deceased’s testamentary freedom on the basis of an obligation to provide for the proper ‘care and maintenance’ of certain people.
The fundamental question the Court considers is whether the deceased has left the applicant “without adequate provision for his proper maintenance, education or advancement in life”. The test to ‘qualify’ is generally a two-fold test, need and capacity. Does the applicant need further provision, does the deceased’s estate have the capacity to meet that need (and any other needs or competing interests)?
What will the Court consider?
The Court will weigh up a variety of discretionary factors, such as the assets and liabilities of the applicant, the size of the estate, the relationship of the applicant and the deceased, what kind of standard of living the applicant is used to, and even matters such as the capacity of the applicant to provide for themselves.
The Court will additionally take into consideration the needs of who the deceased did leave provision for. In the recent decision in Potter & Anor v Bellifemini & Anor [2019] SASC 120, Judge Bochner ruled against the applicants, who had made a claim for provision out of their deceased father’s estate. However, noting the size of the estate and the fact that the defendant, the deceased’s wife was in the latter years of her working life with little chance to provide for herself in comparison to the applicants, and the fact that she had cared for the deceased whereas their children had not, the Court was not inclined to order provision for the applicants.
The Court will also consider provision by the deceased prior to death. In the case of Swanson & Anor v Reis & Anor [2018] SASC 20, the applicant was given $80,000 by the deceased before her death. The gift was enough in the various other circumstances that formed the case that the Judge did not agree that the applicant had been left without adequate provision for proper maintenance, education, or advancement in life.
The Court will, if it believes that the deceased had an obligation to provide for the applicant, make a decision as to what kind or amount of provision is appropriate given all of the circumstances.
When do I have to make a claim by?
Unlike many forms of civil actions which have a 6 year time limit for bringing a claim, a claim under the IFP Act it must be brought within 6 months of a grant of probate being obtained in the deceased’s estate. Therefore it is important to obtain legal advice from an experienced estates lawyer as soon as possible in situations where you may wish to make a claim or you anticipate as the executor of an estate that someone will be making a claim against the estate.
Do you need help to make a claim under the Inheritance Act?
If you believe you may be entitled to receive provision under the Inheritance (Family Provision) Act regime or need legal advice, call Ezra Legal today to discuss your rights. Whatever stage you are at in your life, it is also important to have an up to date will drafted by a lawyer experienced in the area that accurately reflects your intentions and may prevent estate disputes.
Call us on 08 8231 6100 or email reception@ezralegal.com.au.
We look forward to hearing from you soon.
Kind Regards,
Michael Fabbro, Principal
