What happens if you have been left out of the will?

Challenges under Family Provision (Testator’s Family Maintenance) legislation

Testator’s family maintenance legislation introduces a threshold jurisdictional question as to whether or not the deceased’s Will, or the statutory intestacy provisions,[1]have made “adequate provision for the proper maintenance, support, education or advancement in life”[2]of the claimant.  The above question is one of fact and relevant to the claimant’s station in life as at the date of the deceased’s death[3]The court measures the terms “proper” and “adequate” against the claimant’s station in life and the nature of the relationship that they had with deceased[4]. The court does not consider the terms “proper” and “adequate” as fixed concepts but rather as flexible or relative. The court uses “a multi-faceted evaluative judgement,[5]which weighs up the competing needs of the parties[6]. The court has regard to the current and future needs of the claimant. The court looks through the lens of a “just and wise testator and not one who is fond or foolish,”[7]and one who is placed in a position of knowing all of the facts. A non-exhaustive list of examples of the factors have been set out in s60(2) of the Succession Act 2006 (NSW).

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[1]See ss6(1) and 7 FPA.

[2]See s6(1) FPA, Coats v National Trustees Executors & Agency Co Ltd(1956) 95 CLR 491; Singer v Berghouse(No 2)(1994) 181 CLR 201 and Bondlemonte v Blackensee[1989] WAR 305.

[3]Blore v Lang (1960) 104 CLR 124.

[4]Vigolo v Bostin(2005) 221 CLR 191.

[5]Basten JA, in Foley v Ellis[2008] NSWCA 288, at [3]; Pontifical Society for the Propagation of the Faith v Scales[1962] HCA 19 and Deveraux –Warnes v Hall[2007] WASCA 235.

[6]Re Allen, Allen Manchester [1922] NZLR 218.

[7]Bosch v Perpetual Trustee Co Ltd [1938] AC 463.

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