A Family Provision Application, or FPA for short, is lawyer speak for challenging an estate. Technically, there are two kinds of estate litigation: challenging the Will document itself; or challenging the distribution of the estate.

Will Challenges

Challenges to the Will document can happen when a family member believes there may be a later Will, or the Will submitted to the court is not valid, or there is some other technical deficiency in the document.

In addition, a Will can be challenged or contested if a person believes the Will was made under duress, or the Will maker did not have the requisite level of competence to make a Will.

Because of the strict requirements around proving duress, there have been no successful undue influence cases in NSW in the last 100 years or so. Less frequently a challenge may be made on the basis that ‘suspicious circumstances’ surround the execution of the Will.

Estate Challenges

A claim can be made against an estate for provision, or further provision, out of that estate. However, only an ‘eligible person’ may bring such a claim. Eligibility is set out under section 57 of the Succession Act which lists a set number of categories of persons who are allowed to challenge an estate.

The section 57 categories include: spouses; former marriage mates; de facto partners; children, persons in a ‘close personal relationship’, and persons who were members of the household of the deceased at any time and “wholly or partly” financially dependent on the deceased at any time. The section 57 categories do not include brothers, or sisters, or parents of the deceased.

The definition of ‘member of the household’ has been interpreted broadly by the courts. In addition section 57(2) of the Succession Act sets out that a child of the deceased includes adopted children, biological children, children under any de facto relationship, and “a child for whose long-term welfare both parties have parental responsibility”.

Please note the answers provided are for your general information only and we ask you to call our office on 02 6331 2911 to obtain detailed legal advice for your individual situation.

Next week I will outline how to win an estate challenge.

Wills & Estates | Kenny Spring Solicitors