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Contesting Wills

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Step 4 - Can You Show Need for Provision?

If you have established that you are eligible to bring a family provision claim, you are within the limitation period and you have not been adequately provided for in the will your next need to ask what it is your needs are. 

The words the courts use is whether 'adequate provision for the proper maintenance, education or advancement in life' has been provided in the will of the deceased person. If the answer to this question is 'no', the court then asks what it is that the claimant needs.  In other words, what should the deceased have given you and why?

What the layperson would call 'need' the court calls 'provision'. It asks whether or not the deceased person 'provided' for you and, if so, whether that provision could be considered adequate in all the circumstances.

Being able to demonstrate a need for provision is an essential element of your claim. If you own your home, as well as an investment property, have plenty of superannuation, savings in the bank, no debts, earn a good income and you and your family are all in good health then, unless the estate is large and you have little competition, it is unlikely you will be able to successfully contest a will. You might be eligible to contest, but there are other factors to consider when weighing up whether or not you would be successful in doing so.

While many people are angry that they have been left out a will for emotional or family reasons, or principle, the court will only consider changing the wishes of a deceased person if they have left behind someone who can demonstrate that they need the money.  The law does not correct hurt feelings or a sense of wrong. It does not compensate for past wrongs. The court simply considers whether or not the provision made was, in all the circumstances, adequate for that person’s proper maintenance and advancement in life.

Now, you may say "doesn't everyone need money?" Well, most of us do, yes. But not all. And it's relative. For example, you may have a mortgage but a good job and you're in good health. Your sister on the other hand may have a mortgage but she's a single mother earning a low income and your deceased parent only left $75,000 behind. This is where a delicate balancing exercise arises.

In most cases if you have a mortgage or some other debt you can demonstrate that you have need, but you also have to consider the needs of your competitors. How do you do that? Well if you know roughly what their financial position is you can estimate the strength of a potential family provision claim by weighing up what the will says, what is in the estate, what your competitors need and what you need.

This is the part where an experienced lawyer is particularly important.  Call us on 1800 720 211 (or email) if you have any questions about your need for provision.  An experienced will dispute lawyer will answer the phone.

Step 5: Who Are Your Competitors?