| | Introduction
The Family Provision Act 1982 (FPA) took effect from 1 September 1983. It applies to the estates of people dying on or after that date.
The aim of the Act is to remedy unfair treatment of certain people who had been left without proper provision being made for them in a will – i.e. the deceased did not specify them to receive any property under the will. Simply, any eligible person can apply to the court for some property from the estate of the deceased. This is irrespective of whether they were included or not in the actual will of the deceased.
What about testamentary freedom?
Simply, the Act intrudes on testamentary freedom.
Assuming a person has testamentary capacity, that is, they are of sound mind, that person may give away his property in way he likes. Aside from the Act, whether or not s third party agrees with how the testator gives away his property is irrelevant.
This somewhat controversial issue is negotiated by way of careful court analysis. The court interprets the Act not as a license to rewrite the will, but as a tool that provides for the person making the claim in absence of such provision by the testator.
How to make a claim
An application under the FPA must be made within 18 months of the death of the deceased. The executor or administrator of the deceased's estate can apply to the court to have this period of time shortened. An applicant can apply to have it extended.
Am I eligible to make a claim?
The Property (Relationships) Legislation Amendment Act 1999, which took effect from June 1999, has wide implications for wills and estate matters. The Act amended the De Facto Relationships Act 1984 (renamed the Property (Relationships) Act 1984) so that eligible persons now include those in same sex relationships.
Those now eligible to apply under the FPA are:-
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the husband or wife of the deceased person at the time of the deceased person's death;
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a person with whom the deceased person was living in a domestic relationship at the time of death;
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a child of the deceased person; or, if the deceased person was living in a domestic relationship at the time of death, a child of that relationship;
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a former wife or husband of the deceased person,
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a person who was, at any particular time, wholly or partly dependent upon the deceased person, and who was, at any time, a member of a household of which the deceased was a member;
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a grandchild of the deceased person who was, at any particular time, wholly or partly dependent upon the deceased
A domestic relationship is defined as:
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a de facto relationship; or
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a close personal relationship (i.e. between two adults, whether or not related by family, who are living together, one or each of whom provides the other with domestic support and personal care (but excluding paid domestic and personal
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carers including those working for government or charitable organisations).
Other factors that can influence whether provisions are made for an applicant under the FPA include:-
other matters that the court considers important (e.g. the financial means and needs of the applicant).
How is money awarded?
Money, and or property are granted to the applicant for their maintenance, education or advancement in life.
Who pays?
Generally, the costs of a successful application under the FPA are ordered to be paid for from the deceased's estate; however, the court can decide otherwise. |
