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How can I prevent a Family Provision Application against my estate?

Go to Previous Article - Summary of Kozak v Matthews (where defacto partner contests a Will)

If you are aware that you are not making provision in your Will for a person who may be an ‘eligible person’ (for example, a person who could be seen as dependent on you for their support, maintenance, wellbeing or advancement in life), then there are steps you can take to limit any potential claims.

Statutory Declarations:  You can make a statutory declaration in support of your Will, outlining the reasons why you have not made provision for a certain person/s.  You should make the statutory declaration clear and concise and avoid any emotionally charged statements.  This will be accepted as evidence in court if your Will is ever challenged to assist the court understand your intentions and reach their decision.

Financial Agreements:  As seen in the case of Kozak v Matthews, having a Financial Agreement in place with your partner or ex partner may also influence a Court in making their decision if an application was ever made under family provision legislation.

Deeds of Release:  A Deed of Release is a way in which a person can “opt out” of family provision legislation.  Although technically you can’t contract out of your rights under family provision legislation, a deed of release may be taken into consideration by the Courts as evidence of the party’s intentions. 

An exception to this is New South Wales, which allows you to file a Deed of Release with the Supreme Court.  If it is approved by the Court, it will be bind the parties and prevent them from making a family provision claim in the future.  The court may revoke it’s approval of a release in instances of fraud or undue influence.

The Financial Agreement Kit provided by RP Emery & Associates provides a complementary will kit. 

It is strongly recommended that you take the time to put a valid will in place that reflects your current circumstances.

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