It is common that when somebody passes away, a person who is in a relationship with that person (whether de-facto or married) or a child, sibling or relative may feel that they have not been properly provided for under the will. If this is the case, they may consider contesting the will or making what we call in New South Wales a Family Provisions Claim.
To make a successful claim, you must prove to the Court that you are dependent on that person. This can be difficult when an adult child is living an independent life and may own their home (even with a mortgage) and holds other assets. This difficulty can be further increased by the potential claimant being able to work and having the financial support of a spouse or partner.
However, this is not the be all and end all of these matters. When an application of this nature is made, the question that the Court must answer is whether the deceased has failed to make adequate provision for the applicant’s proper maintenance, education, and advancement in life.
That is why the Court will need to consider all of the circumstances of the case (such as the relationship between the parties) and the various below factors as per the Succession Act 2006 (NSW). These are:
- The nature and size of the estate;
- The financial resources and the needs of the applicant, other claimants and beneficiaries;
- The nature of any obligation owed to the applicant and to other claimants and beneficiaries;
- Any provision made to the applicant during the deceased’s lifetime;
- The testamentary intentions of the deceased;
- The character and conduct of the applicant and any other relevant person before and after the deceased’s death.
- Contributions made by the applicant to the deceased’s assets.
As you can see, dependency is a crucial fact in these types of matters.
If you would like to know more about your ability to contest an estate, please feel free to contact our offices at Penrith, Parramatta and Richmond.
Written by Cameron Spanner