T h e r e a r e 6 e l i g i b l e p e r s o n s w h o m a y f i l e a n F P C.
By CZAR CALABARZARON
It is a common belief by many people in NSW that a testator (person making a will) has the complete freedom to dispose his property upon death. The testator can decide to exclude certain family members in a Will and it is believed that his decision will be respected and followed to the letter. This belief is only PARTIALLY TRUE.
The Family Provision Claim (“FPC”) under the Succession Act 2006 (NSW) provides a legal remedy for an “eligible person” (applicant) to contest a Will. Simply put, if a family member has been excluded or inadequately provided in a Will, they can bring a FPC within 12 months of the death of the testator and “challenge” the Will. The Courts may then “override” the wishes of the testator and alter the distribution of the estate to provide for adequate provision for the proper maintenance, education or advancement in life of the applicant.
There are 6 categories of “eligible persons” that may file a FPC under the Act: 1. a wife or husband; 2. a person who was living in a de-facto relationship with the testator ; 3. children, regardless of age; 4. a former husband or wife; 5. a person who was wholly or partly dependent on the testator and a member of the testator’s household at any time; and 6. a person who was living in a “close personal relationship” with the testator.
The FPC will only be successful if the court considers that the testator made inadequate provision for the applicant’s proper maintenance, education and advancement in life. In considering this matter, the court generally looks at the applicant’s needs, the testator’s duty, if any, to make provisions in favour of the applicant in their Will and all relevant circumstances of the case.
Therefore, it is incorrect to assume that the testator in NSW has complete freedom to dispose of his assets in any manner he wants. The Court’s powers under the Act places significant restrictions this freedom. Indeed, there are several cases where the courts have made orders substantially different to the wishes of the testator, even in favour of persons expressly excluded from the Will. Thus, it is suggested that careful consideration must be given to the court’s discretion under the Act when preparing a Will.
Atty. Czar Calabazaron is a Barrister at Marbury Chambers. He is also a lawyer in the Philippines and a partner/consultant in Salud Calabazaron Del Fierro a law firm in the Philippines. For legal advice on Philippine and Australian matters, you can call Atty. Calabazaron at 0413684330/(02) 80843786, email attyczar@yahoo.com or visit http://czarcalabazaron.com