A family provision claim is a claim brought by a person against the estate of a deceased person seeking, in effect, an entitlement from the estate. This may arise because the person has been ignored or overlooked by the deceased or arguably insufficient provision has been made.
In deciding whether or not to grant a family provision order, the Court first looks at whether the person is an ‘eligible person’ as defined by the Succession Act.
Examples of an ‘eligible person’ include a spouse or child of the deceased.
The Court will consider when deciding whether to make a family provision order such matters as:
- Any family or other relationship between the applicant and the deceased person, including the nature and duration of the relationship;
- The nature and extent of any obligations or responsibilities owed by the deceased person to the applicant, to any other person in respect of whom an application has been made for a family provision order or to any beneficiary of the deceased person’s estate;
- the nature and extent of the deceased person’s estate (including any property that is, or could be, designated as notional estate of the deceased person) and of any liabilities or charges to which the estate is subject, as in existence when the application is being considered;
- the financial resources (including earning capacity) and financial needs, both present and future, of the applicant, of any other person in respect of whom an application has been made for a family provision order or of any beneficiary of the deceased person’s estate;
- if the applicant is cohabiting with another person—the financial circumstances of the other person;
- any physical, intellectual or mental disability of the applicant, any other person in respect of whom an application has been made for a family provision order or any beneficiary of the deceased person’s estate that is in existence when the application is being considered or that may reasonably be anticipated;
- the age of the applicant when the application is being considered;
- any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate of the deceased person or to the welfare of the deceased person or the deceased person’s family, whether made before or after the deceased person’s death, for which adequate consideration (not including any pension or other benefit) was not received, by the applicant;
- any provision made for the applicant by the deceased person, either during the deceased person’s lifetime or made from the deceased person’s estate;
- any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person;
- whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased person’s death and, if the Court considers it relevant, the extent to which and the basis on which the deceased person did so;
- whether any other person is liable to support the applicant;
- the character and conduct of the applicant before and after the date of the death of the deceased person;
- the conduct of any other person before and after the date of the death of the deceased person;
- any relevant Aboriginal or Torres Strait Islander customary law;
- any other matter the Court considers relevant, including matters in existence at the time of the deceased person’s death or at the time the application is being considered.
By Steve McAuley
McAuley Hawach Lawyers
11 Fennell Street, Parramatta NSW 2124
Telephone: (02) 9633 1826
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