Has someone chosen to you leave you out of their Will? Have you received an unfair amount from someone’s estate? If so, there is a way you can make a claim for a further provision from an estate.

These types of claims are known as family provision claims. A family provision claim is an application made to a court by an “eligible person” for a share or larger share from an estate of a deceased person.

In New South Wales, an “eligible person” includes the following:

• A spouse of the deceased at the time of the deceased’s death
• A de facto partner of the deceased at the time of the deceased’s death
• A child of the deceased
• A former spouse of the deceased
• A grandchild of the deceased who was at any particular time wholly or partly dependent on the deceased
• A person who was at any particular time wholly or partly dependent on the deceased and at that particular time or any other time, a member of a household of which the deceased was a member, or
• A person with whom the deceased was living in a “close personal relationship” at the time of the deceased’s death.

Some individuals will find it easy to establish they are an “eligible person” based on their relationship with the deceased (e.g. current spouses or children of the deceased). Whereas, other individuals will be required to provide evidence to establish that they fall into one or more of the above categories.

For example, in order for a de facto partner to be considered an “eligible person” they must have been in a “de facto relationship” with the deceased at the time of the deceased’s death as defined in section 21C of the Interpretation Act 1987 (NSW).

A person is in a “de facto relationship” with another person if they have relationship as a couple living together and are not married or related by family.

All factors of the relationship are taken into account, including:

• The duration of the relationship
• The nature and extent of the couple’s common residence
• Whether a sexual relationship exists
• The degree of financial dependence or interdependence, and any arrangements for financial support, between the couple
• The ownership, use and acquisition of assets
• The degree of mutual commitment to a shared life
• The care and support of children
• The performance of household duties, and
• The reputation and public aspects of the relationship.

None of the above matters are essential in determining whether two individuals are in a de facto relationship.

A person that does not qualify as a de facto partner may be eligible to make an application on another basis (e.g. a dependent household member of the deceased).

Another example is grandchildren. For a grandchild to be considered an “eligible person” they must show they were wholly or partly dependent on the deceased at any time.

It is not enough that a grandchild’s dependence is an indirect result of the grandparent providing support or maintenance for their own adult child thereby indirectly benefitting the grandchild. To establish dependency in such a relationship:

• The dependency must be immediate and direct
• The gifts or benefits received by the grandchild from the grandparent must of such regularity and significance that it can be said that the grandparent assumed responsibility of the support and welfare of the grandchild.

If you are an “eligible person” and you believe you are entitled to make a claim on a deceased person’s estate, please note that your application must be made within 12 months from the deceased’s death.

If you are uncertain as to whether you are an “eligible person” or you require advice in relation to family provision claims, please contact our team of Estate Lawyers on (02) 9223 9166 or submit an online enquiry.