Disputing A Will & Family Provision Act Claims

Two of the more common complaints made in connection with an estate include that the deceased lacked understanding or mental capacity when he or she made the will or that a family member or dependant was "left out of the will".

Lack of Understanding

It can be difficult to prove that the deceased lacked capacity or understanding without clear evidence or proof. While in some circumstances the lack of capacity will be clearly evident in many cases it is not and it is important to seek professional advice.

The requisite degree of understanding has been expressed such that:

 It is essential that a testator should understand the nature of the act and its effects, [he should] understand the extent of the property of which he is disposing and [he should] be able to comprehend and appreciate the claims to which he ought to give effect (Banks v Goodfellow (1870) L.R. 5 Q.B. 549)

The testator must be proved to be lacking in understanding at the time the will was attested or when instructions were provided to the solicitor drafting the will.

Family Provision Act

If a claim is being contemplated against the estate due to some doubt or issue as to the testator's understanding an additional or alternative claim can be made pursuant to the Family Provision Act if an eligible claimant has been left without adequate provision.

A claim under the Family Provision Act can be made by:

1. A spouse or defacto of the deceased
2. A child of the deceased
3. Certain categories of dependants

It is important to seek legal advice and if a claim is made that the claim is made without undue delay. While the Family Provision Act allows 18 months from the date of death in which to claim under the Act it is important to file a claim as soon as possible, for example difficulties can arise if the estate has been distributed to the beneficiaries in the interim. 

Litigation Costs

It is important that timely legal advice is sought and that the parties attempt to settle or mediate any dispute before proceeding to court or hearing in order to control costs.

Wills

A high degree of care must be taken if there is any issue or suggestion that a testator may lack understanding.

Call LAC Lawyers to advise you on the best course of action and to assist to avoid any unecassary costs and stress associated with dealing with any claim involving the death of any family memeber.