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There are many reasons why a person may want to challenge a Will. Sometimes the Will may not have been signed or witnessed properly. Sometimes there's doubts as to the interpretation or content of the Will. Sometimes there is a concern that the Will does not provide adequately for the testator's dependants.

This article deals briefly with recent changes made to the Succession Act, which integrated the Family Provision Act into its workings recently.

The Family Provision Act used to give the Court some discretion to make adequate provision for certain people where the will fails to do so. The Act is now repealed and most of its functions are now integrated into the Succession Act.

One of the major changes to how this all works is an application for family provision under the Succession Act has been reduced from 18 months to 12 months from the death of the deceased. Although this time can be extended or restricted by the Court, usually it requires a compelling reason to do so.

There are six categories of people who can make a claim:
1. A spouse of the deceased
2. A defacto spouse of the deceased
3. A child of the deceased
4. A former spouse of the deceased
5. A person who was wholly or partly dependent on the deceased, and was a member of the household at any one time (such as a grandchild or a parent)
6. A person who was living with the deceased in a close personal relationship.

When orders are made, they are to be for the maintenance, education, or advancement in life. Another major change to the law in these applications sets out what the court may take into account when making such an order. For example, the court may consider the nature of the relationship and how long it existed, the financial circumstances of the claimant, the testamentary intentions of the deceased, or if any other person can support the applicant.

An application for a family provision order under the Succession Act can be a complex and costly affair. Even though the recent changes to the legislative framework has demystified the process and made it easier, it is still a difficult process and hardly one that should be dealt with on your own.

--
Kenneth Ti
Associate Solicitor

PHANG LEGAL
www.phanglegal.com.au

About Phang Legal

Phang Legal is a progressive and dynamic law firm offering a different attitude to the practice of law and a different approach to the delivery of legal services. The firm continues to honour the traditions and standards of the legal profession, while remaining current and relevant to ever changing client requirements and expectations. Phang Legal provides cost effective and practical solutions across a wide range of practice areas including conveyancing and property law, corporate and commercial law, litigation and dispute resolution, wills and estates (elders law), legal aid and criminal law, and notary public services.

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