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Family Provision Claims

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Call Us: 02 9119 2232

Family Provision Claims

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Call Us: 02 9119 2232
————  01. OVERVIEW

We Can Help

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What is a family provision claim?

Prior to the late 19th century, the law adhered to a strict principle of testamentary freedom. Under this principle, testators had the right to dispose of their property by will as they liked and to whomever they wished, regardless of how unfairly this affected those closest to them. This often meant that a testator’s spouse or children were left with little or almost no provision under the will.

By the late 19th century, the law gave a greater recognition to women’s contributory role in the context of marriage and domestic life and as such, recognised their greater entitlement to a share of a deceased’s estate. A prominent case that helped prompt the introduction of family provision laws in Australia was that of Francis O’Neil, a well-known bookmaker and owner of ‘Truth’ newspaper, who left his entire estate to his mistress and illegitimate children, leaving his actual wife and children without any money. This case and other instances alike helped pave the way to introduce family provision laws into the principle of testamentary freedom.

Whilst the law still recognises testamentary freedom, it recognises that those who die owe a moral duty to those closest to them to provide for their proper maintenance, education and advancement in life. When a person fails in this duty, the Courts may intervene by making the proper provision that the testator failed to do in the will and awarding the applicant with provision.

Who is eligible to apply?

A person making the application must first demonstrate that they are an eligible person under the Succession Act 2006. Eligible persons include:

  • Spouses (including former)
  • Domestic partners
  • Children (including adopted children)
  • Grandchildren who were members of the same household of the deceased person;
  • Persons who were wholly or partly dependent on the deceased
  • Persons who the deceased person was living in a close personal relationship at the time of the deceased’s death

What timeframes apply?

A person making the application must ensure it is made within 12 months from the date of the deceased’s death. In some circumstances, provided that either all parties consent to the application being made out of time, or sufficient cause being shown, the Court may accept an application that is being made beyond this timeframe.

What matters does the court take into account?

Once it is established that the applicant is an eligible person, the court must answer the crucial question: ‘whether the will has failed to make adequate provision for the proper maintenance, education or advancement in life of the person who is making the application’.

There are no specific circumstances that can constitute or fail to constitute ‘adequate provision for the proper maintenance, education or advancement in life of the applicant’. In this regard, the court undertakes an evaluative judgement of the provision that is actually made in the deceased’s will against the requirement for proper maintenance that is established by the applicant’s evidence. In cases, this process is established by reference to community standards or has sometimes been expressed as being referable to what is ‘right and proper’ according to the moral duty of the deceased.

To answer the above question, s60 of the Succession Act provides the court with a list of matters which must be taken into account, including any other matters that the court deems relevant. Some of the important considerations include:

  • The nature and quality of the relationship between the plaintiff and the deceased
  • The character and conduct of the plaintiff
  • The nature and extent of the plaintiff’s present and reasonably anticipated future needs
  • The size and nature of the deceased’s estate
  • The nature and relative strength of the claims to testamentary recognition by the deceased of those taking benefits under the will of the deceased; and
  • Any contribution, financial or otherwise, direct or indirect, by the plaintiff to the property or welfare of the deceased

It must be remembered that where the court answers the crucial question in the affirmative, its job is not to remake the will, but rather altering it only to the extent that adequate provision is required to be made in respect of the person who the testator failed in their moral duty to provide for.

Can an adult children make a family provision claim?

The short answer is yes. In fact, claims made by perfectly able bodied and financially sound eligible children have been successful. Subject to the requirements of the Succession Act, there is no prohibition for an adult child to make an application simply because of their age or their financial situation.

It has sometimes been the case on the part of those defending an application by an adult child on to argue that the child needs to establish a special need before obtaining provision from the estate of a deceased parent. This has been denied. There is also no requirement that a child be a natural recipient of parental ties, affection or support before they can be deemed eligible. The law in this regard expects parents to make provisions for their children, regardless of their age, if there are assets available and the child remains a dependant. This duty extends to providing a buffer against contingencies and potentially even something to assist them in retirement if they have failed to do so themselves, where they would otherwise be left without any money.

The High Court of Australia in Vigolo v Bostin [2005] HCA 11 interpreted the word ‘maintenance’ as implying a continuing of a pre-existing state of affairs or provision over and above a mere sufficiency of means to simply live. This interpretation could mean that an eligible person (such as a child) who has been accustomed to a particular lifestyle may be entitled, by reason of her parents’ moral duty, to continue living that lifestyle after their death and if the provisions in the will do not make for that, then he or she may be able to obtain additional provision out of the estate.

Who pays for costs of a family provision claim?

If you make an application for family provision, you are called the ‘plaintiff’ or ‘applicant’.

The ordinary rules for costs in litigation apply equally to family provision claims. This means that as the plaintiff, if you are not successful in your claim, you may be ordered to pay the costs of the other party. If on the other hand, you are successful, you may be able to get some or most of your legal fees paid by the other party, or in some cases, by the deceased estate.

Despite this ordinary rule that applies, family provision claims are considered to ‘raise different issues with respect of costs’ to those raised by other ordinary proceedings. This is because success in a family provision claim is heavily dependent on the overall justice of the case and the subjective element of the judge who decides the case. This means that unlike other proceedings, the outcome of family provision cases is notoriously difficult to predict.

For this reason, the courts exercise their discretionary powers to order cost under s98 of the Civil Procedure Act more liberally. This means that in many cases, it is not uncommon, for an unsuccessful applicant to not be ordered to pay any costs particularly if the terms of a cost order would have a detrimental effect on their financial position. This is particularly the case where the Court may recognise although the claim had failed, it had some merit and was reasonable to be brought. It is also the case where the Court may recognise the cause of litigation was the testator who may have failed to provide adequate provision in their will because if they had, the proceedings could have been avoided. In the latter cases where the Court is satisfied the cause of litigation was the failure of the testator to provide for adequate provisions in their will, orders may be made that the cost of the litigation fall on the estate.

How do we charge for family provision claims at One Law?

At One Law, we may take on your case on a no win no fee retainer. Our decision depends on many factors including the relative strength of your case and the availability of estate funds (or notional estate) to satisfy a potential claim.

All parties involved in a family provision claim in the Supreme Court are ordered to attend compulsory mediation, which result in matters resolving either at mediation or before they attend a final hearing. In the 2021 calendar year, out of the 872 family provision claims which were filed in the Supreme Court, only 27 or 3.1% of them were decided by the Court. This means that almost 97% of cases resolved between the parties. In the unlikely event that a matter does not resolve at mediation, the parties are given a hearing date by the court. Given the volume of cases that go through the Supreme Court every year, a standard timeframe from when a family provision claim is filed and until it is fully decided by the court is between 12-18 months.

If we decide to take on your case on a no win no fee basis, you will not be required to pay any money for professional fees unless your matter achieves a successful outcome.

Get in touch with us today to discuss your claim.

Applications by former spouses, dependant persons, grandchildren, and those living in a close personal relationship with the deceased

There are categories of persons that whilst are deemed to be an eligible person, require to satisfy an additional requirement before the court can grant them provision out of an estate. These persons are former spouses, persons who were dependant on the deceased, grandchildren and those who claim to have lived in a close personal relationship with the deceased.

This additional requirement is the need to satisfy the court that there are factors that warrant the making of the application. The reason for this additional hurdle is a recognition at law that ordinarily, these people are not natural objects of testamentary bounty but nevertheless, if there are factors that warrant the making of such application, they can be given provision out of a deceased estate.

A close personal relationship is defined under the Succession Act as a close personal relationship (other than a marriage or a de facto relationship) between two adults, regardless of their relation by family, who are living together and one or each of whom provide the other with domestic support and personal care. It must be remembered that a relationship where a person provided the deceased with domestic support and personal care for a fee or reward does not count as a close personal relationship.

In an application where a person claims to be an eligible person by reason of being in a ‘close personal relationship’ with the deceased, the court is entitled to take into account any factors relevant to first determine whether in fact they were living in a close personal relationship as that term is defined, and also whether there are factors that warrant the making of a family provision order. It is not possible to state an exhaustive list of matters that the court takes into account in this respect however some relevant considerations are:

  • The nature of the relationship and contributions made by the applicant to the deceased;
  • The nature of the parties’ joint ownership of asset;
  • How the parties made plans for and arranged their financial affairs with one another
  • The financial position of the applicant at the time of the application, and their future financial needs as established by the evidence

The duration of a close personal relationship is relevant, but by no means will it assist the application even if it is established that it was a long one. In Sun v Chapman [2021] NSWSC 955, the NSW Supreme Court found that the applicant had been in a close personal relationship with the deceased for 20 years living together, however refused the application for a family provision because the Court was not satisfied that the evidence established factors sufficient to warrant the making of a provision. In that case, the Court found that the gifts made in the will to the applicant were consistent with the community expectations of a man in the deceased’s position and therefore ordered that the applicant be dismissed.

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    ———— 03. HOW WE CAN HELP YOU

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    01. Meet With Us

    We will meet with you at a time and place that is convenient for you. We will discuss details concerning your assets and liabilities, your family and your wishes upon your death.

    02. Review Your Information

    We will review information supplied by you in relation to your assets and liabilities and family structure. We may also need some paperwork to confirm the information you provide to us. We will consider the law that applies to your particular circumstances and wishes and determine whether there will be any issues in drafting your Will as you would like it.

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    ————  04. WHAT OUR CLIENTS SAY

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    ————  05. OUR TEAM

    Your Wills and Estate Specialists

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