Family Provision Claims
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———— 01. OVERVIEW
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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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Success Stories
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What do Wills, Power of Attorney, Enduring Guardianship and Probate all mean?
Wills and estate planning is a task that can feel overwhelming, especially when we haven’t…
Challenging a Relative’s Will
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Have you been Treated Unfairly under a Will?
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What Happens to your Will after your Death?
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Superannuation Benefits and your Will
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What is a Will?
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Letters of Administration
The death of a family member or loved one a truly emotional time, and often…
Will
Writing a will can be a challenging and emotional experience, and there are often may…
What do Wills, Power of Attorney, Enduring Guardianship and Probate all mean?
Wills and estate planning is a task that can feel overwhelming, especially when we haven’t heard of the terms such as Wills, Power of Attorney, Enduring Guardianship and Probate. Allow One Law to simplify these tasks and define what each term means:
A Will
A Will is a legal document that formalises your wishes in relation to your assets and possessions. A Will appoints your Executor, who is person responsible for administering the deceased person’s estate, ensuring that any debts are paid, and distributing the remaining assets as detailed in the Will. A Will also appoints your beneficiaries to receive your assets.
Power of Attorney
A Power of Attorney is a legal document providing someone (Attorney) the authority to make legal and financial decisions on your behalf. The Power of Attorney is beneficial if you are travelling overseas or unwell, allowing you to still attend to your matters such as signing documents or dealing with property. There are two types of Power of Attorney:
·General Power of Attorney – assists with decisions to be made on your behalf while you have mental capacity to do so. It ceases when you lose mental capacity.
·Enduring Power of Attorney – assists with decisions to be made on your behalf, before and after you have lost mental capacity to do so.
Enduring Guardianship
An Enduring Guardianship enables you to designate a trusted individual (Guardian) to make vital decisions about your medical health, dental health and lifestyle. This will only apply once you are unable to make important decisions and will continue as longer you require unless:
·You cancel or revoke it, before you lose mental capacity
·Your guardian resigns or unable to be carry out the role
·Guardianship Division of NSW Civil and Administrative Tribunal (NCAT) or the NSW Supreme Court revokes or changes the appointment.
Probate
Probate is a legal process that validates the Will of a deceased person so that their wishes can be carried out by any executors named in the Will. An application for a Probate or Letters of Administration is made where the deceased person has assets. There are two types of applications you can make to the Supreme Court of NSW:
·Grant of Probate – a legal document that authorises an executor (or executors) to manage and distribute the estate of a deceased person in accordance with the provisions of the deceased’s will; and
·Grant of Letters of Administration – a legal document that authorises an administrator (or administrators) to manage the estate of a deceased person in accordance with the law. This applies where the deceased person did not have a Will.
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Challenging a Relative’s Will
Simply being treated unfairly under a relative’s will is not grounds for you to challenge the testator’s will. However, if you believe that a close relative was forced into doing a will or they were forced into making an amendment to their will (called a codicil) by someone you may have grounds to challenge that will.
All testamentary documents (such as wills or codicils) only come into effect after the person’s death. Where the validity of a testamentary document is in question, the most important question for the court to determine is whether the document was the last will of a free and capable testator.
Challenges are generally limited to the following grounds:
- If there are allegations that the will or codicil was not executed in a manner required by law
- If there are allegations that the testator lacked testamentary capacity
- If there are allegations that the deceased did not know and approve of the document.
- If there are allegations that the document was obtained by undue influence (in the sense that the person was forced)
- If there are allegations of fraud
- If there are allegations that the document has been revoked. This is usually established by a later testamentary document or conduct of the deceased.
It is important to understand that suspicious circumstances surrounding a testamentary document of themselves are not enough. There must be good evidence to establish a fact that the will or codicil was not made by a testator who was free and capable of giving such instructions.
In matters involving challenges to a testamentary document, the court will usually make orders for the parties to attend a mediation. The purpose of mediation is for the parties to see if they can come to an agreement without the need to proceed to an expensive court hearing. If mediation has already been attempted, then court may by-pass this stage.
If you believe any of the grounds explained above may apply in your case, contact us today for more information.
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Have you been Treated Unfairly under a Will?
A testator (person who has done a will) can leave their property (or estate) to whoever they like. However, this leads to instances where people closest to the testator are left with little to no inheritance under a will.
There are many reasons for this but usually the most common is disputes between members of a family, such as siblings or spouses.
If you are a member of a family and feel that you have been treated unfairly under a will, you may have grounds to bring a Family Provision Claim against the person who has left very little or nothing for you after their death.
What is Family Provision Claim?
The law recognises that people can leave their assets to whomever they wish to do so after they die. However, the law imposes a moral obligation on people to provide adequately for others in their lives after their death.
This is usually the person’s surviving spouse and children. It can also include those that were dependant on the deceased.
In rare cases, it can also include a former spouse and also a person with whom the deceased lived with.
The persons described above may be considered ‘eligible persons’ for the purposes of a Family Provision application. In determining an application, the court takes a number of others matters into consideration before making a decision.
If you think that you have been treated unfairly under a will and believe you may be an eligible person, you have 12 months from the date that the deceased died to make an application to the NSW Supreme Court for a Family Provision order.
Call us today to find out more.
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What Happens to your Will after your Death?
Every properly drafted will should nominate an executor and also another executor in the alternative in case the first one is unable or unwilling or unable to act.
After your death, your executor who is now your legal representative, is responsible for obtaining what is called a ‘grant of probate’. Probate is necessary for essentially two main reasons:
- To obtain title to your property; and
- To have authority to deal with your estate
Probate is granted by the NSW Supreme Court to the executor. It is important to note that until probate is granted, your executor is not allowed to deal with your estate or do anything including making payments to anyone. If your executor begins to administer your estate prior to probate being granted, they may be held personally liable for any loss or damage suffered by anyone including any beneficiaries.
Applying for a grant of probate is technical and should not be attempted without professional advice. There are also time limitations that apply for the Supreme Court from the date of death and missing them can present problems for executors.
If you are an executor of a will and need help, contact our office for a free initial consultation.
We can advise you whether a grant is required or not. If the circumstances of the estate indicate that a grant is required, we will give you the right advise to ensure that the administration of estate takes place in a timely fashion, and the rights of beneficiaries under the will are protected.
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Superannuation Benefits and your Will
By the time many Australians reach maturity or retirement age, the balance of their super is often a decent sum. A common mistake in many wills drafted by non-professionals is to include instructions on who is to receive super money after the person dies.
It is important to note that super is managed by a Trustee on behalf of the fund. The Trustee makes their decision on who is to receive the death benefit of a member who has died in accordance with legal guidelines as well as any binding death nominations that the member provided to the fund before they died. If the member had completed a binding death nomination form and nominated any person(s) as their benefactors, then the Trustee must distribute the death benefit in accordance with that nomination.
But if there is no binding death nomination form, or it has expired because it was done more than 3 years ago, then the Trustee has discretion to give the death benefit to any persons they deem appropriate. As a result, super does not form part of your estate and any instructions in your will as to who will benefit from your death benefit is invalid.
If you or a loved one have a will that gives instructions on who is to benefit from your super and you are unsure whether a binding death nomination form has been completed with your super fund, it is crucial that you speak to one of our lawyers today to make sure proper arrangements can be made (including changing your will if necessary) to ensure your super is dealt in a way that you want it.
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What is a Will?
A person (called a testator or testatrix) leaves a will when they make a written declaration about what they want done with their property and assets (called their estate) after their death.
Your will does not have to just deal with your estate. It can include other wishes like who will look after your children until they reach 18, and whether you like to set up trusts to benefit certain people in your life.
Many people have already done a will at some point in their life, whether on their own or with the help of a professional. However, not many people are aware that whilst the legal requirements of a valid will are simple under the Succession Act 2006 (NSW), these requirements can easily be overlooked or challenged by others after their death leaving their estate subject to family disputes and legal battles. Your will should also include a revocation clause to clearly indicate that you want your will to operate as your final testamentary wishes. This removes doubt on any old documents that may also be considered a will or an informal will.
Regardless of your age, If you have any assets and want to make sure that those assets are dealt with in a particular way, it is important that you speak to a lawyer who specialises in Estate Planning and get them to prepare a professionally drafted will.
Our lawyers at One Law can also advise you on other Estate Planning documents to ensure that you are protected if adversity strikes.
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Letters of Administration
The death of a family member or loved one a truly emotional time, and often with their death comes unexpected burden.
On one particular instance, our team of specialist lawyers acted for an estate where the deceased died intestate (passed away without having made a will). The gentleman however, left a suicide note intended to be his ‘final will & testament’. In that note, the deceased named our client Bella as the executor of his estate and residuary beneficiary, meaning she was to receive any property that was not specifically left to anyone else. Also included in his note, the deceased named individuals to whom he owed money to.
Apart from requesting that the court grant probate of the suicide notes as an informal document, we were required to obtain the consent of all those named on the suicide notes as they were deemed to be ‘affected persons’ for the purpose of the Supreme Court Rules. Time was of the essence in this matter as the estate owed considerable debts to mortgagees on properties which were attracting interests.
We were able to draft and execute proper documents with respect to all affected persons to obtain their consent so that the probate application can be granted for our client and she could administer the deceased’s estate as per his final wishes.
In instances such as these it’s important to speak to the dedicated team of specialists at One Law to ensure that not only are your loved ones best interests maintained, but also that unexpected financial costs are kept to a minimum.
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Will
Writing a will can be a challenging and emotional experience, and there are often may parties that are affected by the decisions you make in your will. One such example of this is the story of Anita and Ellen.
Anita and her sister Ellen came to our office to seek guidance in preparing Anita’s will.
Whilst in many instances, the presence of a support person is helpful, certain events raise concern because it appeared in this particular situation that Anita seemed swayed and pressured by her sister Ellen. We tried seeking instructions from the Anita on her own, but as hard we tried, Ellen would not leave her side.
To avoid a family conflict, we advised both Anita and Ellen that under the law (Succession Act 2006 NSW), a beneficial disposition in a will, whether in a gift or otherwise, becomes void if the person receiving that gift is present or is a witness to the will when it is made.
It was only then that Ellen stepped back and allowed us to speak in private with Anita. During this discussion, the team discovered that Anita did not want to leave her sister Ellen anything in her will, as she had three children of her own, and preferred to leave her assets to them instead.
Anita had a sizeable estate, and we were concerned that there might be future claims to dispute the will. To minimise future claims, we advised her that we should do a detailed affidavit for her and leave it on the record to explain the reasons for her decisions under the will.
This is a perfect example of ensuring will drafting is done right from the start as to minimise any future conflicts, will disputes or family provision claims that can really exhaust the assets of the estate and leave those who are rightfully entitled with nothing. That’s why it’s crucial that when preparing you will you speak to the team of experienced Lawyers at One Law Group.
Contact Us———— 03. HOW WE CAN HELP YOU
We Make it Simple
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.
03. Commence Drafting Your Will
We will commence drafting your Will and ensure that it is “air tight” to protect your assets as best as possible from any disputes arising after your death.
04. Witnessing and Signing Your Will
We will explain the contents of your Will and make sure they are correct and you are happy with the document. We will then arrange for you to sign the document and have your signature witnessed by two people who are not mentioned in the Will.
05. Storage and Advice
We will be happy to store your original Will for safe keeping if you would like us to. We will provide you with a copy for your records. We will also provide you with a letter confirming that the work is completed. It is important to let family members and friends know where your original Will is held.
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Your Wills and Estate Specialists
At One Law, we understand that every case is different, and we take the time to get to know your situation. We are your local lawyers with access to resources in all states, so you know your case is in good hands no matter where you are in Australia. Meet our Wills and Estate Specialists.
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