Colleen McCullough died in January, 2015 and was known as one of Australia’s most successful literary writers. The author of the international successful novel The Thorn Birds, published in 1977, had an Estate estimated to be worth millions of dollars at the time of her death.Continue Reading
Family Provision Claim
Who Can Challenge a Will?
The structure of families has changed over time with many people living in blended families. As a result there were changes to the law about who qualifies as an eligible person to be a beneficiary of a Will. These changes to the law along with increased property prices, have seen an increase in challenges to Wills.
There are laws in place that allow a person to challenge the Will of a deceased on the basis that they were an eligible person to challenge the Will and that the deceased did not make adequate provision for their proper care, education and maintenance in life.
In New South Wales, these types of claims are called “Family Provision Claims”.
A family provision claim is a claim against the Estate of a deceased person.
According to the legislation in NSW, only ‘eligible persons’ are entitled to make a family provision claim against a deceased estate. ‘Eligible persons’ include:
- You were the spouse of the deceased at the time of death.
- You were a person who was living in a de-facto relationship with the deceased at the time of death. This includes same sex partners. The definition of a de-facto partner requires couples to have lived together for two years up to the date of the deceased's death.
- You were the deceased’s child. This includes adopted children but not step children.
- You were the deceased’s former spouse and had not remarried prior to the death of the deceased.
- You were a person who was:
- dependent (wholly or partly) on the deceased at a particular time.
- a grandchild of the deceased.
- a member of the household of the deceased.
- a person who lived in a close personal relationship with the deceased when the deceased died. For example, two adults may be classified as living in a close personal relationship if they live together and provide personal care and domestic support, without receiving payment or volunteering for a charity.
If you are a parent, sibling, step-child or former de-facto spouse, you are not considered to be an eligible person unless you are eligible under the category where you lived with the deceased and were dependent on the deceased.
How a Family Provision Claim Can Affect Your Will
If a family provision claim is successful it will mean that the division of your Estate under your Will will be altered. The alteration will be to provide adequate provision for the proper maintenance, education or advancement in life in favour of the person who made the family provision claim.
When determining whether to make a family provision order the Court is required to consider the following factors:
- The relationship between the person applying for the family provision order and the deceased including nature and length of the relationship
- The nature and extent of the deceased’s estate
- The financial resources and financial needs of the person applying for the family provision order and any other beneficiaries under the Will
- The financial circumstances of any person living with the person applying for the family provision order
- Any physical, intellectual or mental disability of the person applying for the family provision order
- The age of the person applying for the order
- Whether the person applying for the order contributed to the estate of the deceased and did not receive adequate consideration
- Evidence of the testamentary intentions of the deceased
- The character and conduct of the person applying for the family provision order
How to Avoid a Family Provision Claim Against Your Will
To avoid a family provision claim on your Estate once you have died the best thing to do is seek expert legal advice.
A lawyer who specialises in family provision claims and who is experienced with the process of Will preparation, will be able to direct you about the people who may have a claim on your Estate and how to reduce the risk of Will disputes and family provision claims when drafting your Will.
How To Commence a Family Provision Claim
- The husband or wife of the deceased and the former husband or wife of the deceased.
- The de facto partner of the deceased.
- Children of the deceased.
- A person who was, at any particular time, wholly or partly dependent on the deceased and is either a grandchild of the deceased or was a member of the same household as the deceased.
- A person with whom the deceased was living in a close personal relationship and a close personal relationship is a relationship (other than a marriage or de facto relationship) between two adults, whether related or not, living together where one or the other provides the other with domestic support and personal care.
How to Make a Claim
If you are an eligible person who has not been accommodated financially in the Will of the deceased then you need to act quickly to ensure that your claim for reasonable financial provision is successful. Family provision claims must be made within 12 months of the death of the deceased and claims made outside this time period are only allowed with the leave of the Court.
The Claim Process
Family Provision Claims are heard in the Supreme Court of New South Wales. To commence your claim you need to provide the Court with evidence to support your claim for reasonable financial provision. At Heckenberg Lawyers we have extensive experience in gathering this evidence and providing it to the Court in the best way to ensure your claim is successful.
Once your claim has been filed in the Court, a date will be set for mediation of the dispute. A large number of claims are settled during this mediation process, which alleviates the need for expensive and protracted court proceedings. The expert Wills, and Probate Lawyers at Heckenberg Lawyers have attended numerous mediations, which have resulted in a settlement of the dispute on terms advantageous to our clients.
Family Provision Claims by Children in Blended Families
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, Anderson v Hill  NSWSC 1149, 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.
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 substantial.
Family Provision Claims by Grandchildren
The Family Provision Act provides legal remedies for people to claim against deceased estates in situations where they feel they have not received their inheritance or been properly provided for by the deceased. The law courts regularly have to determine claims by children against the Executors of deceased estates where it is stated their parents did not make adequate provision for them in their Wills or they were left out of the Will altogether.
To make a claim a person has to be establish they are an “eligible person” under the Act. Husbands, wives and children are automatically eligible persons.
Grandchildren can also be eligible persons and therefore have legal standing to bring a claim in certain circumstances. The Act requires that the grandchild to establish that at any particular time in their life they were wholly or partly dependent upon their grandparent. The general principles are:
- A grandchild is not normally regarded as someone the will maker ought naturally to have concern for. Additional factors need to be shown to bring a grandchild into this category:
- evidence that the deceased had come to assume for some significant time in the grandchild’s life a position more like a parent than grandparent with direct responsibility for the grandchild’s support and welfare.
Each case is determined on its own facts and before any award can be made by the Court the claimant has to establish that they need to have provision made for them.
Applying these principles the Courts have granted an application by grandchildren who were primarily cared for by their grandmother in early childhood and adolescence even after the home of the deceased was sold and the proceeds distributed.