Will Disputes and Family Provision Claims – Can I contest a Will?

A family provision claim occurs where an eligible person is contesting a Will on the basis that they consider what has been provided for them in the deceased’s Will is not adequate and proper in the circumstances. The case of Kemperman v Antonenas [2021] NSWSCC 1555 is an example of a family provision claim in the context of an estranged parent-child relationship.

So, what is an eligible person? In general terms, the classes of persons eligible to make a claim against the estate of a deceased person can be summarised as follows –

• a spouse, former spouse, de facto spouse, partner, domestic partner (however described, or defined); and
• persons with whom the deceased shared a domestic or close personal relationship (however described, or defined); and
• past or present dependants (including, but not limited to, children and grandchildren).

The applicable categories of person vary across the States and Territories for these Will disputes, so we recommend that in determining whether you qualify to contest an estate or Will, you should contact our specialist estate dispute lawyers to confirm if you meet the eligibility requirements.

After eligibility is established, is the issue of whether or not adequate provision for proper maintenance, education, or advancement in life was made in the Will of the deceased for the applicant (the person making the claim) needs to be considered.

When deciding whether to make an order for provision, the Court will take into account several factors including the following:

• The relationship between the applicant and the deceased (including estrangement);
• The size of the estate;
• The financial circumstances, and present and future needs of the applicant;
• Any contribution to the estate by the applicant;
• Any contribution to the deceased’s welfare by the applicant.

Estrangement (having no relationship with a person for a period of time, e.g. reduced or no contact for many years) is a common issue in Will dispute matters. The Court in Kemperman v Antonenas described estrangement as a condition created by the conduct of both parties and is relevant to the Court’s consideration in making an order for provision. Estrangement does not require the Court to assign ‘blame’, but the circumstances must be examined. This is most common in parent-child relationships where a break down occurred potentially many years ago and the parent has made little or no provision for the child in their Will. We have acted on both sides of these Will contest claims and so appreciate the various issues that need to be considered for you.

Case Example – Kemperman v Antonenas

In the NSW Supreme Court decision of Kemperman v Antonenas, the applicant (the estranged daughter of the deceased mother) was successful in obtaining a lump sum payment from the estate.

The applicant was one of three adult daughters of the deceased. The applicant and the deceased had an estranged relationship with limited contact for the last 50 years of the deceased’s life. The deceased had only provided a small amount for the applicant in her Will, leaving the residue of her estate to be shared between the other siblings. The deceased had provided reasons in her Will, describing the applicant as the “greatest disappointment” to the family and for that reason she did “not deserve…a handout from our heritage” (see Kemperman v Antonenas [2021] NSWSCC 1555 [27]).

However, the applicant was significantly worse off than her sisters. She lived on a disability pension in public housing and had little future earning capacity. She made a family provision claim to be able to purchase permanent housing and assist with future medical procedures.

The judge was satisfied that adequate provision in this Will dispute claim had not been made for the applicant because:

• While the deceased and the applicant were estranged, they still had contact with each other, though it was limited;
• The deceased still provided a small amount for the applicant in her Will, meaning she still believed the applicant had some sort of claim to her estate;
• The applicant had limited financial resources and minimal future earning capacity due to her age and poor health;
• Neither of the other sisters had any pressing financial need; and
• The estate was of sufficient value to allow further provision to be made without severely depleting provisions for the other beneficiaries.

What This Means for You

You might be eligible to make a family provision claim to challenge a Will if you have not been adequately provided for in a loved one’s estate. Our estate dispute specialists in the Private Wealth Law team at Chamberlains can assist you.