What is a family provision claim?
A family provision claim can be made when an “eligible person” – often a spouse or a child of a deceased person – considers that adequate provision was not made for them when the deceased made his or her Will.
Such applications in New South Wales are made to the Supreme Court of New South Wales.
Succession Act 2006 (NSW)
Section 57 of the Succession Act 2006 (NSW) (“the Act”) sets out the eligible persons who may apply for a family provision order.
There are 2 groups of persons eligible to apply for a family provision order:
- the first group comprises spouses or a child of the deceased; and
- the second group includes:
- a former wife or husband of the deceased person
- a grandchild of the deceased who was, at any particular time, wholly or partly dependent on the deceased;
- a person who was, at any particular time, wholly or partly dependent on the deceased and was, at that particular time or any other time, a member of the household of which the deceased was a member;
- a person with whom the deceased person was living in a close personal relationship at the time the deceased person died.
Sub-section 3(3) of the Act (the definition section) defines “a close personal relationship” as a close personal relationship (other than a marriage or a de facto relationship) between two adult persons, whether or not related by family, who are living together, one or each of whom provides the other with domestic support and personal care.
It is open to a court to make a family provision order if:
- the applicant is an eligible person; and
- at the time when the court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the applicant has not been made by the will of the deceased, or by the operation of the intestacy rules in relation to the estate of the deceased, or both.
Chapple v Wilcox [2014]NSWCA 392
A recent case of interest is the case of Chapple v Wilcox [2014] NSWCA 392. In this case, a decision of the Court of Appeal set aside a Supreme Court decision to make provision for a grandchild in circumstances where the deceased had left his whole estate to his only child, his daughter (the grandson’s mother). The estate comprised principally a pastoral business.
The grandson had had little contact with his grandfather for some time and he had not visited his grandfather since 2004.
In contrast, the deceased’s daughter (who had inherited the whole estate under the Will) had enjoyed a close relationship with her father for most of his life.
The Court found that she had been “a dutiful and caring daughter” and that, according to community standards and expectations, there was little to support the grandson’s claim that provision should have been made for him out of his grandfather’s estate to justify interfering with the wishes expressed in the grandfather’s Will.