Claiming Further Provision from an Estate

If you have been left out of a will or received inadequate provision under a will for your proper maintenance, education and advancement in life, you may be eligible to make a claim against a deceased person’s estate for family provision orders under Chapter 3 of the Succession Act 2006.

Who Can Claim?

The classes of ‘eligible persons’ are prescribed under section 57 of the Act. These include persons from the following categories:

a person who was the wife or husband of the deceased person at the time of the deceased person’s death,
a person with whom the deceased person was living in a de facto relationship at the time of the deceased person’s death,
a child of the deceased person,
a former wife or husband of the deceased person,
a person:
who was, at any particular time, wholly or partly dependent on the deceased person, and
who is a grandchild of the deceased person or was, at that particular time or at any other time, a member of the household of which the deceased person was a member,
a person with whom the deceased person was living in a close personal relationship at the time of the deceased person’s death.

Whilst it is usually a straight forward exercise to determine whether a person is a husband, wife or child of a deceased person, sometimes it is not always clear if a person is an ‘eligible person’ under some of the other categories.

How to make a claim under the Succession Act?

In order to make a claim under the Succession Act the applicant must provide evidence of their needs and that they were not properly provided for in the will. The Court may take into account many factors including but not limited to:

the character and conduct of the applicant during the deceased's life,
contributions that the applicant made to the deceased's property and well-being and;
any other factors that the Court regards as relevant.

In certain circumstances the Court may be prepared to make orders in respect of property of the deceased that was disposed of prior to their death. However to get those sorts of orders the applicant would have to provide sufficient evidence to show that the deceased disposed of that property specifically with the intention of defeating a Succession Act claim.

De Facto Relationships

Recent Case Examples

For example in Peipi v Peipi, the Supreme Court of New South Wales was required to determine whether the claimant was living in a de facto relationship at the time of the deceased passing away so as to qualify her as an ‘eligible person’ to apply for an order for provision from the deceased’s estate and also to determine whether she qualified as the deceased’s spouse under the intestacy provisions of the Act. Ms Peipi, who had lived with the deceased for 2 years, argued that she was entitled to the estate as she was his de facto. The deceased’s daughter from a previous marriage claimed she was entitled to receive family provision orders out of the estate. Matters were further complicated by the high financial assistance the daughter needed, as she was disabled.

Ultimately, in order to determine whether Ms Peipi had been in a de facto relationship with the deceased, the Court looked at the nature and quality of their relationship itself, using the criteria set out in Section 21C of the Interpretation Act 1987. The Court considered the performance of domestic services such as:

cooking,
the degree of interdependence of their financial affairs,
whether the relationship was public, and;
whether they resided together.

When considering these issues the Court relied on photographs showing the deceased and Ms Peipi together at social functions and engaging in other activities together, Christmas cards and other correspondence addressed to them jointly, electricity and gas bills addressed to Ms Peipi at the deceased’s property and evidence of witnesses that they had lived together for over two years and acted as if they were a couple.

The Supreme Court determined that Ms Peipi and the deceased were in a de facto relationship so that she was entitled to receive his estate and also that it was appropriate for the daughter to receive provision from the deceased’s estate.

This case can be contrasted to the decision of the Court of Appeal in Amprimo v Wynn where the appellant sought to appeal a previous finding that she was not in a de facto relationship with the deceased. The appellant had moved in to the home of the deceased and nursed him to health when he was unwell. On appeal, the Court of Appeal confirmed the finding of the original judge that the appellant and the deceased had not been in a de facto or close personal relationship at the time of his death. The Court noted the lack of affection shown between the deceased and the appellant, and the absence of any particular acknowledgement of their relationship, either by the deceased during his lifetime or publicly. This was despite the fact that Ms appellant was living in the deceased’s home and undoubtedly undertook domestic services for him. In that case the appeal was dismissed.

These two cases show that determining whether a claimant is an ‘eligible person’ under some of the categories, such as a de facto, is not necessarily as straight forward as simply proving the existence of a certain set of circumstances, such as cohabitation. The Court will look at the evidence surrounding the relationship as a whole to determine whether a de facto relationship existed between the claimant and the deceased person so as to entitle them to make a claim for family provision orders in favour of the claimant.

At Fox & Staniland Pty Ltd, we have experienced lawyers ready to provide advice and assist you in determining whether you are an ‘eligible person’ to make a claim for family provisions orders

Time Constraints

Generally claims under the Succession Act must be made without delay in order to avoid the estate being distributed to beneficiaries who may deal with it in a way that makes your share not recoverable.

Such applications must be made within twelve months from the date of death. In certain circumstances the Court will approve applications under the Act outside the twelve month period.