Family Provision Claim on a Disputed Estate

Family Provision Claim on an Estate

Anderson v Hill [2017] NSWSC 1149

In today’s world, it is becoming increasingly common for people to be part of blended families where the children’s parents have remarried. In such cases, a child might still be eligible to make a family provision claim on their parent’s estate even though they have remarried.

In a recent case, the court dealt with this issue. The Deceased married her second husband (George) 24 years before she died. She had five adult children from a previous marriage while George had four children from his previous marriage. The Deceased and George however, did not have any children together.

When they got married, the Deceased moved into George’s home (the Ermington Property) where they lived together until the time she died. George having acquired full title to the Ermington Property upon the divorce of his first wife, transferred a share to the Deceased such that they held the property as joint tenants.

The Deceased in her will left all her assets to George. However, as the only assets she owned on her own was minimal, no Probate was sought. Since the Ermington Property was held as joint tenants, it did not form part of the Deceased’s estate and the property was automatically transferred to George.

The Deceased’s son, David, having received nothing from his mother’s estate, sought to make a Family Provision Claim on the Estate to receive a share of the Ermington Property. However, the difficulty in this case was that being property held as joint tenants, it never formed part of the estate in the first place. As a result, David brought his claim on the Ermington Property on the basis that it formed part of the notional estate.

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Notional Estate simply put is property that should have become part of the estate but due to some action of the Deceased, it no longer was. The Court has the power to deem an asset part of the notional estate if the estate has limited assets.

The Judge found that a child of the Deceased may have a claim on their parent’s matrimonial home with their new spouse even though their parent had remarried. In determining whether to make a provision for a child of a blended family, the court will take into account considerations including, how close the relationship between the child and parent was, whether the child lived in the matrimonial home at some point before their parent died, the current and previous wills of the Deceased, whether the matrimonial home was transferred to the parent for some money, how long the marriage was and the financial needs of both the child and spouse of the Deceased.

In this case, as a child of the Deceased, David had a legitimate family provision claim. However, he did not have a close relationship with his mother having only visited her 3 or 4 times a year. Furthermore, he had only lived in the matrimonial home for a very short period of time and even then he was not given a key to the home or allowed in certain areas. Also, even though the Deceased had paid to get a share of the property, the money was put into a joint account and used for the maintenance of the property. Lastly, the judge found that George has very little assets other than the property. Accordingly, if provision was to be made for David, George would have to sell the property to pay David. It was found that forcing George to either sell his matrimonial home or take out a loan at his age would not be fair. Accordingly, no provision was made for David. However, the court considered that a provision for David might have been possible if the estate was more substantia.

Thus, children from blended families do indeed have a claim on the estate. To find out whether you have a claim, call us at (02) 9221 2779.