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74% of family provision claims by family (children or partners, including ex-partners) were successful.

Most wills are contested under family provision legislation.

Studies undertaken by the University of Queensland in 2015 found that:

• 86% of claims are brought by immediate family: either children of the deceased (63%) or partners (including ex-partners) (23%) – This means adult children are the most common claimants in Will contests.

• Contestation is most commonly driven by both exclusion and significant disparity in distribution.

• When there is a contestation, there is a high rate of success, whether through the Court or through mediation.  74% of family provision claims by family (children or partners, including ex-partners) were successful.

Common Reasons for Contesting a Will

Contesting a Will refers to claims pursuant to the family provision legislation. The said studies also found that contestation is most commonly driven by:

• Inadequate provisions to meet the needs of a family member.

• Type and quality of relationship with the deceased.

• Exclusion and significant disparity in distribution, where a family member felt a sense of entitlement to a better distribution.

Significance in Findings

The Will maker:

With 51% of estates contested were through family provision claims, if you are making  a will, you need to give very careful and detailed considerations to how you should distribute your assets. The more complex the family relationships, the higher the chance of your Will being contested and there being a dispute between your family members upon your death.

At the time of making your Will, you need to consider ways to reduce contestation risk by addressing underlying family dynamics and issues – such as obtaining strategic advice from lawyers, obtain counselling, properly communicate with family, etc.

The Executor or Administrator:

It is highly likely that the deceased representative who has obtained grant of Probate or Letter of Administration (i.e. the executor or the administrator) may find himself or herself having to spend a lot more time dealing with legal proceedings, engage lawyers to defend the contestation, and obtaining expert evidence to defend against a claim, as opposed to getting on with the task of actually administering the estate. This can be extremely time-consuming.

A family member who can be a potential claimant:

There is a high success rate for a family member who is seeking family provisions from a deceased’s estate.  Despite there being a Will in place, the Court has the discretion to make orders and award provisions to a family member.

ABOUT THE WRITER

Kelvin Tang has over 14 years’ experience practising law in Western Australia. He is the founder and Principal Partner of Tang Law based in Perth, Western Australia. Kelvin is a Registered Migration Agent (MARN: 1386452) and has extensive experience in providing service on Commercial Law, Dispute Resolution & Litigation, Family Law, Wills & Estate Planning and Settlements.