“Inheritance claims” (as they are commonly known) may be made pursuant to the Family Provision Act 1972 (WA) in Western Australia, or under equivalent legislation in other Australian States and Territories.
As its name suggests, only certain family members may rely on family provision laws to challenge a Will. At present, the following persons are eligible to make a claim for further provision from an Estate in Western Australia:
- Spouse, former spouse or de facto partner of the deceased;
- Biological, adopted or step-children of the deceased;
- Grandchildren of the deceased; and
- Parents of the deceased.
The Family Provision Act 1972 (WA) empowers these eligible persons to change the way that a deceased Estate would otherwise be distributed under the Will or the rules of intestacy, which detail a prescribed pattern of succession. Eligibility is often hedged with conditions, such as proof of financial dependence.
Once eligibility is established, applicants must demonstrate that the Will does not adequately provided for their “proper maintenance and support”. The Court will then determine the amount of further provision that is appropriate (if any). Any further provision will be taken out of other family members’ inheritances.
Applications by Stepchildren
Stepchildren have only been eligible to make a claim under the Family Provision Act 1972 (WA) since 16 January 2013, albeit in limited circumstances. This recent development recognises the increasing number of blended families in Western Australia.
For the purposes of the Family Provision Act 1972 (WA), the term “stepchild” has a very specific meaning. A “stepchild” must satisfy the following characteristics:
- he or she is a biological or legally adopted child (whether minor or adult) of the spouse or de facto partner of the deceased;
- he or she is not the biological or legally adopted child of the deceased; and
- he or she was alive on the date on which the deceased married or entered into the de facto relationship that gave rise to the step relationship.
The stepchild must also demonstrate that, immediately before the death of the deceased:
- the stepchild was maintained, or was entitled to be maintained by the deceased; or
- the deceased was receiving, or was entitled to receive property from the Estate of a parent of the stepchild (other than as a creditor).
The practical effect of the Family Provision Act 1972 (WA) is that Wills are defeasible instruments.
This is general information only, and does not constitute specific legal advice. If you would like further information in relation to this matter or other legal matters please contact our office on Freecall 1800 609 945 or email us now.