Contesting a Will14 Feb 2022
All jurisdictions in Australia provide statutory rights for eligible persons to contest a Will on the basis that they have not been left adequate provision by the testator for their proper maintenance, education, and advancement in life.
In Western Australia, an eligible person generally includes:
- a spouse or de facto partner;
- a person receiving or entitled to receive maintenance from the deceased as a former spouse or de facto partner;
- a child of the deceased;
- a grandchild of the deceased, in specified circumstances;
- a stepchild of the deceased, in specified circumstances;
- a parent of the deceased.
If a family provision claim is successful, the Court may order an adjustment to the terms of the Will in favour of an applicant to satisfy the claim. A range of factors are considered including the relationship the applicant had with the deceased, the obligations or responsibilities the deceased had to the applicant, and the nature and size of the estate.
The moral duty to provide for a spouse
There is a general expectancy that testators have a moral duty to provide for the proper maintenance of their spouse or de facto partner. The Court has explained this as providing what is necessary for the spouse to enjoy accommodation to the standard to which he or she is accustomed and, to the extent possible and having regard to the size of the estate, a fund to meet unforeseen contingencies. This is particularly so where the marriage or relationship has been lengthy.
Family provision claims by widows often involve a contest between the applicant and a child or children from the deceased’s former relationship.
The applicant will generally apply for greater provision than what has already been provided in the Will based on his or her personal and financial circumstances, current financial position, and future needs.
The general expectation that spouses should provide for each other may place a widow’s needs ahead of other interested parties in a family provision claim. However, all cases will be individually assessed in light of the relevant circumstances and balanced with the needs of the applicant and the competing needs of other entitled recipients. In doing so, the Court will also be conscious of the responsibility that a testator has towards his or her children.
Determining the sufficiency of proper maintenance
The Courts have explained the difficulties of determining the meaning of ‘proper maintenance’. In Re Harris  SASR 497 it was considered to be ‘…more than a provision to keep the wolf from the door – it should at least be sufficient to keep the wolf from pattering round the house or lurking in some outhouse in the back yard – it should be sufficient to free the mind from any reasonable fear of any insufficiency as age increases and health and strength gradually fail’.
Sometimes, widows are left a ‘right of residency’ in the testator’s property. This allows the widow to occupy the family home or other property of the deceased for his or her lifetime with the intention that the property will pass to a residuary beneficiary, such as the testator’s child or children from a former marriage, after the widow’s death.
A right of residency however is not always practical and may be considered insufficient to meet the moral duty expected of the testator. The widow may, due to age or health, need to vacate the residence, being left vulnerable and without security of a home.
The alternative approach of leaving the home to the widow may also be inappropriate – if the widow passes soon after the deceased, then the result may be a significant capital asset being inherited by the widow’s relatives, contrary to the wishes of the testator.
There are however various solutions available to deal with these issues.
In Luciano v Rosenblum (1985) 2NSWLR 65 the Court gave some guidance as to the expectation of a widow after the death of a spouse:
‘Where the marriage of a deceased and his widow has been long and harmonious, where the widow has loyally supported her husband and assisted him to build up and maintain his estate, the duty which a deceased owes to his widow can be no less than to the extent to which his assets permit him to achieve that result…’
A testator generally owes a moral duty to provide for his or her spouse and, as a general rule, a spouse may have priority over other entitled beneficiaries in a Will contest. However, each case is different, and it is important to obtain professional advice relevant to your individual circumstances.
Strict time limits apply with respect to making a claim for family provision. If you feel you have not been given adequate provision from the Will of a family member or if you or someone you know wants more information or needs help or advice, please contact Ian Tait on 08 9422 8111 or email firstname.lastname@example.org.