Wills, Estates and Beneficiary Rights – Part 2: Beneficiary rights
April 19, 2023
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Part one of this series looked at beneficiary rights in relation to Wills. In part 2 of the series we will focus on disputes in relation to estates.
Here in Western Australia, disputes relating to the division of assets in an estate are governed by the Family Provision Act WA
(“the Act”).
Who can claim for further provision in WA?
The Act sets out the class of persons who are entitled to bring a claim against a deceased person’s estate. This class is limited to:
- Spouses (including a de facto partner)
- former spouses or de facto partners if they were receiving (or entitled to) maintenance from the deceased
- children
- step-children, in some circumstances
- grandchildren, in some circumstances
- the deceased’s parents
How does the Court determine whether further provision ought to be made for a claimant?
If you fall within the class of potential claimants, then the Court may change the disposition of a deceased’s estate to make further provision for you. In determining whether a change ought to be made, the Court must carry out a two stage process:
- The first stage involves determining whether the disposition of the deceased estate by Will makes adequate provision from the estate for the proper maintenance, support, education or advancement in the life of the claimant, and
- If the Court determines that adequate provision has not been made for the claimant, then the Court may order such provision as the Court thinks fit to be made out of the deceased’s estate for the proper maintenance, support, education or advancement in life of the claimant.
In order for the Court to make a determination that inadequate provision has been made for a claimant, the claimant needs to establish that they have a financial need for further provision. The more financially well-off a claimant is, the less likely it is they will be able to satisfy the Court that provision ought to be made for them.
What is the process for commencing an FPA Claim?
If you believe that inadequate provision has been made for you from an estate, then you have 6 months from the issue of a Grant of Probate in which to commence an action in the Supreme Court. The Court does however have the discretion to extend this time limit in special circumstances.
The process is usually commenced by the claimant filing an Originating Summons (this is akin to an application form) and a first affidavit.
The originating summons must set out what changes the claimant would like the Court to make to the Will of a deceased, or in the case of an intestacy (dying without a Will), to the statutory formula dividing the deceased’s estate. The Court will no longer accept applications which simply ask the Court to make “orders which the Court thinks fit and proper”.
The Court requires claimants to join all affected parties to the application. This means that if a claimant is asking the Court to alter a Will so that a property which is due to pass to person X under the Will instead passes to the claimant, then person X must be joined to the proceedings.
As part of a claimant’s application, they are also required to swear and submit a first affidavit to the Court which states matters such as:
- Confirmation of their eligibility to bring a claim under the Act (i.e. confirmation as to which class of beneficiaries they belong to)
- Their income, financial resources and expenditure
- Their assets and liabilities (including details of values and how these values have been determined)
- Their state of health
- Where a claimant has a spouse, then (B) to (D) above in relation to the spouse too
Most Family Provision Act claims settle at the first Court ordered mediation. This means that very few matters actually proceed to trial.
How are legal costs in FPA claims dealt with?
The legal costs of a claimant will not automatically be paid from the estate.
Ordinarily, where a matter settles as a mediation, each party bears their own legal costs.
If the matter proceeds to trial, the Court has the discretion to award costs in favour of a successful claimant. However, where the claimant is unsuccessful, the Court may order the claimant to pay their own legal costs ans also those of the other parties’.
Summary
If you are concerned that:
- inadequate provision has been made for you under a deceased person’s Will,
- inadequate provision has been made for you on an intestacy (i.e. because the deceased person died without a Will),
- you have not been included as a beneficiary under a Will, or
- you need assistance in defending your entitlements under a Will or intestacy,
then please contact us at 9321 5451 to discuss your rights.
For further information about our legal services, please visit our website: https://www.bailiwicklegal.com.au/
The above information is a summary and overview of the matters discussed. This publication does not constitute legal advice and you should seek legal or other professional advice before acting or relying on any of the content.
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The International Sustainability and Carbon Certification (ISCC) System has come to the attention of many Western Australian farmers recently, as the scheme has changed one of its policies regarding aerial spraying. What is the ISCC? The ISCC is one of the world’s largest voluntary sustainability certification schemes enabling participants to demonstrate they are producing materials in a sustainable way that meets or exceeds community expectations. In Australia it is widely used in the canola industry, enabling Australian canola growers to access the European biofuel market. CBH Marketing and Trading holds certification for the ISCC EU and ISCC PLUS programs, that cover canola, barley, oats, wheat and lupin, allowing WA growers to participate in both programs. Participating in the ISCC program can result in a premium on grain, however participants are subject to more stringent measures to satisfy sustainability accreditation requirements. Recent decision on aerial spraying ISCC Principle 2.6.2 prevents aerial spraying from taking place within 500 metres of a body of water. CBH has successfully lobbied for an exemption to this Principle, for farm dams and salt lakes of low ecological value. As part of its lobbying, CBH provided expert reports to the ISCC on the hydrology and ecology of WA farm systems. For farmers who are signed up to the ISCC program, this removes an obstacle during the season for weed management. The Principle does still require a 500 metre buffer for other bodies of water, including freshwater lakes, rivers, ponds or creeks. However, for those who farm yabbies and marron, this change may not be welcome. Marron and yabby farmers have noticed impacts on their populations where aerial spraying has taken place close to their properties, and aerial spraying can unintentionally damage natural vegetation, including young and old growth trees. For growers, it’s always prudent to follow best practice guidelines for aerial spraying to avoid spray drift – including monitoring weather conditions and the effect of water added to the chemical. For some farmers, this decision may prompt an examination of whether signing up to the ISCC program might be best for their business. In this circumstance, it is important to weigh up the potential benefits of the program compared to the sustainability accreditation requirements. For others, this decision is a timely reminder to stay up to date with best practice guidelines when it comes to spraying, particularly during the seeding season. For assistance with all of your agribusiness needs, contact Bailiwick Legal on 08 9321 5451 or email office@bailiwicklegal.com.au By Ciara Nalty (Solicitor) For further information about our legal services, please visit our website: https://www.bailiwicklegal.com.au The above information is a summary and overview of the matters discussed. This publication does not constitute legal advice and you should seek legal or other professional advice before acting or relying on any of the content.
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