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When thinking about your Will and who you will provide for, often people do not make provisions for their parents. In Western Australia, there are certain classes of people that can contest an estate under limited circumstances. Section 7(1) of the Family Provision Act 1972 (“the Act”) states that certain people can contest a Will and make a claim for some provision or a greater portion than what they were originally provided in the Will or lack thereof.  One of these classes of people is the parents of the deceased.  This is a little seen situation but one you should be aware of.

Can my parents contest my Estate?

Under the Act, for a person to contest an estate, they must fall within a class of eligible applicants. This includes spouses, a child, a grandchild, a stepchild, or a parent. Therefore, yes, a parent can contest their child’s estate, however, to be eligible, they must fall into one of the following categories:

  1. They must be the parent of the deceased, whether the relationship is determined through a legal marriage or otherwise, where the relationship was admitted by the deceased being of full age or established in the lifetime of the deceased; and
  2. They must have been wholly or partly dependant on the deceased person.

Essentially, the parent must demonstrate that their child had a duty to provide for them or that they were financially dependent on them.

Under what circumstances can my parents contest my Estate?

As mentioned before, the parent must prove that they have grounds to contest a Will, which can include the below:

  1. Inadequate Provision and Dependency:

A parent may have a claim if they prove that they were inadequately provided for in their child’s Will, especially if they were dependant on them. Dependency can be financial or another type of support, such as care. A parent may have grounds to argue that they were financially dependent on the deceased, for example, if they were retired on a low pension and their child was assisting to pay for their bills and groceries. Alternatively, even if they were living with their child and had nowhere else to go, this could also support their claim.

  1. Promised Support:

This circumstance applies if the parent can prove that their child promised to provide and support for them during their lifetime, especially if they were already dependant on them. If this support then was not included in the child’s Will and the parent is left out to fend for themselves when they are elderly and have been cared for by their child, then this may support their claim to contest the estate.  Another example might be where a parent paid a lot of money to build a granny flat on a child’s property and then the child dies and the parent is left without an interest in the home or limited assets.

How to avoid the risk of my parents contesting my Estate?

It is important to note that you cannot prevent or stop someone from making a claim on an estate. Simply, if your parent was not provided for adequately and they were heavily dependant on you, then they may have a strong claim to contest the estate.

If you care for your parents and they are financially dependant on you, it is wise to include a provision for them in your Will so that they can still support themselves should you predecease them. Whether you leave a monetary gift or a certain percentage of your estate, it is up to you. Alternatively, you may consider creating a separate fund for your parents whereby they can inherit it upon your death, should you predecease them. It is important to remember that if parents are financially dependent and you care for them, whereby they live with you, it can be incredibly difficult for them upon your death if there is nothing put into place prior.  You could consider taking out life insurance and naming them as a beneficiary of the proceeds of the life insurance policy.

On the other hand, if your parents are not dependant on you and are financially independent and live their own life with no support from you, then you do not have to include a provision in your Will.

Contesting an estate is a complex area, and if you have parents that are dependent on you and would like further advice on your situation, then get in touch with one of our estate planning lawyers today at (08) 9375 3411.

About the Author: Ida obtained her Bachelor of Laws at Murdoch University in 2020, after graduating with a Bachelor of Criminology. Ida was admitted as a lawyer in 2022 and has worked in the Wills and Estates area since starting her career. She is passionate about providing a friendly service, helpful solutions, and navigating clients through challenging times.

 

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