Australia has various state legislations which erode the principle of complete testamentary freedom and permits Courts to redistribute a deceased estate under Family Provision Laws which can be contrary to a person’s Will.
An application must be brought within 12 months of the date of death, unless sufficient cause is shown to satisfy the Court then an application can be brought outside of time.
In NSW an application must be made by someone as defined under the Succession Act. There are six categories of relationship with a deceased that can make a person eligible to bring a claim. These categories are:
- A husband or wife of the deceased;
- A person in a de facto relationship with the deceased;
- A child of the deceased (including natural and adopted children);
- A former wife or husband of the deceased;
- A person who is dependent of the deceased and who was a grandchild or a member of the deceased household; and
- A person with whom the deceased was living in a close personal relationship at the time of death.
It is worth noting that family members such as brothers, sisters and parents are not included in these categories.
If someone makes an application within 12 months and is an eligible person, two questions must be then asked by the Court
- “Has the Applicant been left with adequate provision for his or her proper maintenance, education and advancement in life?” and if not
- “What provision ought to be made out of the estate of the deceased in favour of the Applicant?”
Certain conduct on behalf of an eligible person can give weight to the deceased’s intention to deliberately leave them out of the Will. This was considered recently by the Court.
“… in respect of children who treat their parents callously, by withholding without proper justification, their support and love from them in their declining years. Even more so where that callousness is compounded by hostility”.
If a person wishes to make a claim they must do so within 12 months of the deceased passing. Claims of this nature are highly stressful as people are still in a period of mourning and are often in dispute with family members such as siblings. It is important for a solicitor to be sensitive to this and avoid legal proceedings if possible.
At Everingham Solomons, we can assist with advising your rights in relation to such claims, because Helping You is Our Business.
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