22/08/2025
Family Provision Act claims:
Who is eligible to make a Family Provision Act claim?
This note forms part of a series of notes about Family Provision Act claims in Western Australia. For more in this series, or for notes in other series or on other relevant topics of interest, please see: www.geoffreywalkerandassociates.com.au
Historically, society has protected the freedom of testators to dispose of property in their Will according to their wishes. In Western Australia, testamentary freedom is limited by the Family Provision Act.
In this legislation, if a person dies and the court is of the opinion that the disposition of the deceased’s estate, effected by their Will or through the laws on intestacy, does not make adequate provision for the proper maintenance, support, education or advancement in life of certain eligible people, then the court may make an order that alters their distribution from the estate.
The first issue to consider, before you even consider the merits of a potential Family Provision Act claim, is whether you are a person who is eligible to make a claim. (Just because you are an eligible person to make a claim does not mean that you would be successful in making one.)
So, who is an eligible person under the Act?
1. The deceased person’s spouse or their de facto partner
A de facto partner must have been living as a de facto partner of the deceased immediately prior to their death.*
It is a common misconception that a de facto relationship simply exists when a couple has lived together for 2 years. Unfortunately, it is not that simple. A de facto partnership means two persons who live together in a marriage like relationship.[1] Whether or not a de facto relationship exists will be decided by the court, considering these indicators:[2]
· The length of the relationship
· Whether the two persons have resided together
· The nature and extent of the common residence
· Whether there is, or has been, a sexual relationship between them
· The degree of financial dependence or interdependence and any arrangements for financial support between them
· The ownership, use and acquisition of their property (including any property they own individually)
· The degree of mutual commitment by them to a shared life
· Whether they care for and support children
· The reputation, and public aspects, of the relationship between them.
A de facto couple can be same sex or different sexes[3] and a person may have a de facto partner even if they are legally married to someone else.[4]
*NOTE: For the purposes of making a Family Provision Act claim there is no specified length of time a person has to have been living in a de facto relationship with a deceased person to be an eligible person to make a Family Provision Act claim. By contrast, if the deceased person has died without a Will, the Administration Act (which provides for entitlements to provision from an estate on an intestacy – where there is no Will) DOES specify minimum periods of time for a de facto relationship to have existed for a de facto partner to be eligible to receive from the estate under the rules of intestacy. So, whereas a de facto partner may not have been living as the de facto partner of a deceased person for long enough to be entitled to receive from their estate on an intestacy, they may still be eligible to make a Family Provision Act claim.
2. A former spouse or former de facto partner of the deceased who was entitled to be paid maintenance by the deceased
3. A child of the deceased
4. A grandchild of the deceased
But only where the grandchild was being maintained wholly or partly by the deceased immediately before the deceased’s death; or where the grandchild was alive at the date of death of the deceased but one of the grandchild’s parents was a child of the deceased person and had predeceased the deceased; or where the grandchild was born within 10 months after the deceased’s death and one of whose parents was a child of the deceased who had predeceased the deceased.
5. A stepchild of the deceased
A stepchild means a person who was alive at the date when the deceased married or entered into a de facto relationship with a parent of the person, but who is not the deceased’s child.
A stepchild is only an eligible person to make a claim if they were being wholly or partially maintained by the deceased person immediately before their death, or, if the deceased (the stepparent) received or was entitled to receive property from the estate of the stepchild’s parent.
For example, if your mother died and your father remarried, then his second wife is your stepmother. If your father dies before your stepmother and your stepmother either receives or was entitled to receive money from your father’s estate when he dies (and his estate is worth more than $517,000), then you would be an eligible person to claim from your stepmother’s estate when she dies.
6. A parent of the deceased
Conclusion
Just because you are an ‘eligible person’ does not necessarily mean you will make a successful Family Provision Act claim. Theres a lot more to consider… (Further insights to come!).
Next in this Series on Family Provision Act claims:
‘Family Provision Act claims – How long do I have to make a claim?’.
(Available under ‘Insights’ here: www.geoffreywalkerandassociates.com.au)
[1] S 13A(1) Interpretation Act (WA) (IAWA)
[2] IAWA s 13A(2)(a)-(i)
[3] IAWA s 13A(3)(a)
[4] IAWA s 13A(3)(b)
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