Contesting a Will – Recent Case Law
“Eligible persons” under the Succession Act 2006 (NSW) (“the Act”) may make a Family Provision Claim where they have been inadequately provided for within a deceased person’s Will. Such a claim must be brought within 12 months of the deceased passing away unless the Court permits otherwise.
“Eligible persons” under the Act include:
- A wife, husband or de facto partner of the deceased person when they passed;
- A child of the deceased;
- Former spouses of the deceased;
- A person who was at any time wholly or partly dependent on the deceased and a member of the same household as the deceased;
- A grandchild that was at any time wholly or partly dependent on the deceased;
- A person with whom the deceased person was living a close personal relationship at the deceased person’s death.
The recent case of Oakes & Oakes  NSWSC 1312, where a divorced former daughter-in-law made a successful Family Provision Claim against the deceased’s estate, serves as a reminder that such claims are not limited to immediate family members.
The Act now sets out various matters which are taken into consideration by the Court in making its decision, including:
- The character and conduct of the eligible person before and after the death;
- Any contribution made by the eligible person towards the welfare or property of the deceased; and
- Anything else it considers important.
In determining how much further provision an eligible person is entitled to out of the deceased estate, the Court will take into consideration their financial needs. In Salmon v Osmond  NSWCA 42 the daughters of the deceased brought a claim seeking further provision. The Court concluded that the primary judge was in error when he ordered further provision so that one adult child could own her own home. The Court found in this instance that there was no such requirement.
The types of conduct which may negatively impact an eligible person’s ability obtain an order for provision includes: adultery, violence, ill treatment or estrangement. For example, in Burke v Burke  NSWCA 195, the Court concluded that an estranged son was not entitled to any provision out the deceased estate as it was clear he wanted nothing to do with the deceased or the rest of the family. The Court denied the son provision even though he was able to demonstrate financial need and the estate was of a reasonable size.
If you require any further information in relation to Family Provision Claims, please call our team of lawyers at The Quinn Group on (02) 9223 9166 today or submit an online enquiry.