The concept of family provision (sometimes referred to as testator’s family maintenance) relates to a will-maker’s (testator’s) moral obligation to be responsible for and take care of their family when deciding whom to leave their property to after they die. At the same time in Australia we have an inheritance system that allows for testamentary freedom. Testamentary freedom means that a person making a will is free to leave their property to anyone they like. Their beneficiaries (the people who receive a gift from their will) may not even be a member of their family. For example a testator may decide to leave all their property to a charity.

Our system of testamentary freedom conflicts with a testator’s moral obligation to make proper provision for their family in their will. That is where the family provision laws in each state and territory come into play. The laws act as a safety net to protect those members of a testator’s family who are excluded from the will or who are ineligible to inherit under intestacy laws. The intestacy laws apply when a person dies without a will. The aim of the family provision legislation is to ensure that a testator’s family or anyone who is dependent on the testator does not become a burden on society by being forced to live on social welfare payments or the generosity of others when it was possible for the testator to leave them financially independent.

The family provision legislation was originally intended to cater for situations where a testator excluded their immediate family (their spouse and children) from their will. This protection still exists in the legislation as a testator’s immediate family is eligible to make a family provision claim if they were left out of the will or have not been adequately provided for.

In recent years the types of people who are eligible to make a family provision claim have been increased. The legislation now includes people who may not necessarily be related to the testator but are part of the testator’s extended family, friends and contacts. Examples of the type of people who may now claim are dependent step-children, those living in a close personal relationship with the testator and anyone who may have lived with and been dependent on the testator at some time.

Another situation where family provision legislation may be relied on is where a person dies without a valid will (intestate or partially intestate). Where this occurs the laws of intestacy dictate who will inherit that person’s property. It is possible that there were people who were financially dependent on the deceased at the date of their death but the laws of intestacy do not allow those dependants to inherit from the estate (the property owned by the testator at the date of death). In that case those dependants may now be eligible to make a family provision claim.

Embarking on a family provision claim is not for the faint hearted as these types of claims have a tendency to be drawn out over a long period and to divide families, often forever. Claims are always expensive and have the potential to diminish the value of the deceased’s estate. This usually means that all beneficiaries will receive less from the estate including the person making the family provision claim. Eligibility to make a family provision claim is also no guarantee that the claim will be successful. For example a claimant may have valid reasons for a claim but the court may decide that the beneficiaries named in the will or other claimants have a greater need for provision from the estate.

Each state and territory has its own legislation relating to family provision claims and administration of deceased estates but they are generally very similar. The legislation outlines:

• who is eligible to apply for provision from a deceased estate based on their relationship to the deceased person;
• if an order can be or should be made;
• the types of orders the court can make in relation to the distribution of the deceased’s estate; and
• the factors the court may take into consideration when deciding the claim.

There are 2 sides to a family provision claim:

• the claim which is brought by the person who seeks provision and who is called the claimant or plaintiff; and
• the defence of a claim. This is conducted by the representative of the estate. They are called the defendant for the purposes of the claim.

A deceased person’s legal personal representative (the person nominated in their will as their executor or the administrator appointed by the court) has the responsibility of dealing with any claims against the estate. This includes evaluating whether the claim should be defended or settled.

Often an executor or administrator is placed under great pressure when a claim is made against the estate because they know or are familiar with the claimant and personally believe that provision (or better provision) should have been made for that claimant. In other situations the executor or administrator may believe that the claim is without merit but they are obliged to enter into settlement negotiations with the claimant to preserve as much of the estate’s assets as they can.

Even though the executor or administrator may feel conflicted their primary duty is to protect the estate’s assets and maintain the value of the estate for all beneficiaries. This can be difficult as if it gets to the point where the executor or administrator must make a decision about settling a claim they may have pressure placed on them by the beneficiaries named in the will to fight the claim to the fullest extent in the courts.

Once an executor or administrator has accepted their role as legal personal representative of the estate they cannot change their mind (renounce their executorship) later. Once the role is accepted the law recognises them as the deceased’s legal personal representative until the estate is distributed whether they actively carry on their role or not. They would be subject to the same personal liability as if they were still actively involved with the estate. For this reason the choice of an executor when making a will is crucial. Testators should select an executor who they believe would be able to cope with the pressure that comes from a claim against the estate.

This Legal Guide on Family Provision provides prospective claimants and administrators with basic information about making and defending a family provision claim. Before making important decisions it is advisable to obtain legal advice specific to your situation. LegalEagle’s™ free directory profiles all lawyers in Australia. You can use it to Find a Lawyer near you.

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Warning: Information provided through LegalEagle™ is for general guidance. It is not legal advice. Laws and procedures referred to may change and differ between states, territories and nationally. There may also be important exceptions or qualifications. Only a lawyer providing formal legal advice can assess your particular circumstances to determine how the law will apply.