Claims for provision under the Inheritance Act

In general, a Will maker is free to dispose of his or her estate as he or she sees fit. However, the law recognises that a Will maker may have an obligation to ensure that he or she provides for certain people.

The Inheritance (Family and Dependants Provision) Act 1972 provides that a person who falls within one of the stated classes of potential claimants may apply for orders that provision be made out of the Will maker's estate for his or her "proper maintenance, education, support and advancement in life". Eligible claimants include the deceased's spouse or de facto partner, a former partner who is entitled to maintenance, parents, children, or, in certain cases, grandchildren.

In examining whether it should make provision for an applicant, the court will undertake a two-stage inquiry. The first stage is to consider whether the deceased has made adequate provision for the proper education, maintenance, support or advancement in life of the claimant.

If the deceased has not done so, then the court will consider what provision should be made for the applicant in all of the circumstances. The decision is a subjective one and in any given matter it is almost impossible to predict what, if any, award a court may make by drawing comparisons with previous decisions. However, there are number of factors which will be relevant in most, if not all, cases including:

• the applicant's financial position;
• the size and nature of the deceased's estate;
• the totality of the relationship between the applicant and the deceased (including any so-called "moral claim" or "moral duty"); and
• the relationship between the deceased and the beneficiaries under the Will (or under an intestacy).

While the Act provides an avenue for a person to seek an alteration to the terms of another's Will, it is important to remember that the court will not do so based on notions of fairness.

The court will always start from the principle that a Will maker is free to dispose of his or her property as he or she thinks fit. The court will only vary the terms of the Will so much as is necessary to ensure that the Will maker makes adequate provision for persons such as his or her spouse or children. The court will not rewrite the Will to create what may be considered to be a "fair" distribution of the estate.

For further information or advice on this topic, please contact Chris Dunnell, Senior Lawyer, by email at cdunnell@talbotolivier.com.au or Rob Durey, Principal, by email at rdurey@talbotolivier.com.au.