You have decided to bring a Family Provision Application (FPA) to contest a will. So, what information will you need to give your lawyer so they can assess and prepare your case? This article aims to give you an overview of the information an FPA applicant will most likely need to provide.
When you commence an FPA you must provide the executor with an affidavit disclosing certain information. This affidavit is your evidence in written form (i.e. the evidence you could give orally in the witness stand but it is in writing). Your affidavit is required to:
- Demonstrate your eligibility to bring an FPA (i.e. you are a spouse, de-facto spouse, child, step-child or a dependent of the deceased)
- Demonstrate that you do not receive adequate provision under the will (or on intestacy);
- Name any people who are eligible to bring an FPA
- Name any other people who might have an interest in the deceased’s estate (e.g. the beneficiaries)
- Disclose your (and your spouse’s) assets, liabilities and all sources of income. You should provide documentary evidence such as bank statements, share statements, title searches, tax assessments etc with your affidavit
Your lawyer will help you prepare your affidavit. Below are examples of the information you will need to tell your lawyer so they can draft your affidavit and prepare your case (in addition to the points outlined above):
- Details about your relationship with the deceased (including conduct by either party which could have affected the deceased’s views about that relationship)
- Evidence that you are an eligible applicant (e.g. birth certificate, marriage certificate or for de facto spouses, documents evidencing the relationship)
- Background information about the deceased’s family
- Details of any contributions you have made to the building up of the deceased’s estate or to the welfare of the deceased (e.g. working in a family business for less than market rate, providing free labour to improve assets, assisting the deceased with chores which otherwise the deceased would have paid for etc)
- Your and your spouse’s financial position including details of your assets, liabilities and income;
- Your financial needs and obligations now and into the future (e.g. medical costs, housing costs etc);
- Your ability to meet your financial needs and obligations;
- Any physical, intellectual or mental conditions you or your family suffer from;
- Information about any competing claims (e.g. the financial position and circumstances of the beneficiaries).
You will also need to provide a number of documents to your lawyer. These are often exhibited to your affidavit as evidence to support your claim. It is a good idea to start collating the documents early on. Some examples of the documents your lawyer will likely need from you include:
- A copy of the will and any previous wills (if you have them)
- Deceased death certificate (if you have it)
- Birth certificate or marriage certificate
- Bank statements
- Share portfolio statements
- Superannuation statements
- Rental statements
- Proof of your income
- ATO notice of assessments
- Mortgage statements
- Credit card statements
- Proof of any other debts or liabilities
- Medical reports confirming any conditions you have
Getting good advice early on about bringing or defending an FPA is vital. Please call the McInnes Wilson Lawyers Wills and Estate Law team if you require advice.
