In NSW if a Will maker fails to make adequate provision in their Will for the proper maintenance, education and advancement in life of those entitled to such maintenance and support, a court is empowered to make an order for family provision to an eligible applicant. This applies equally where a person dies without leaving a Will and the rules of intestacy fail to adequately provide for an eligible applicant. Only an “eligible person” as defined in the legislation can apply to the court for provision. In NSW a category of “eligible person” includes a former wife or husband of the deceased.
In 2014 the deceased died without leaving a Will. The deceased was survived by a daughter and a former wife. Pursuant to the rules of intestacy the deceased’s estate of $5 million would pass to his daughter. The deceased’s former wife made an application to the court for family provision.
As a divorced former spouse of the deceased, the deceased’s former wife was an “eligible person” to bring an application seeking provision be made for her from the deceased’s estate. In doing so, the court was required to determine whether, in its opinion, “having regard to all of the circumstances of the case (whether past or present), there are factors which warrant the making of the application”.
The following factors warranted the court in this case making provision in favour of the applicant former wife:-
- The applicant’s current circumstances of need;
- The respective post-divorce deterioration in the applicant’s circumstances, and great improvement in those of the deceased;
- The impact of the applicant’s care responsibility for the daughter of their relationship, for 15 years after the matrimonial property settlement, on her earning capacity, and her corresponding indirect contribution to the deceased’s estate;
- The relative paucity of the matrimonial estate at the time of the property settlement, compared to the ample resources now available; and
- Where the only other claim on the estate was from the daughter, for whom ample estate will remain after making proper provision for the applicant.
The court ordered by way of provision from the estate of the deceased a lump sum of $750,000 in favour of the applicant.
If you are unsure about your rights to challenge a Will or the laws relating to intestacy when a person dies without leaving a Will, please contact Everingham Solomons because Helping You is Our Business.
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