February 2019 | Jonathan Harris

You have worked long and hard to accumulate the assets that will comprise your estate. So it’s your choice who inherits under your will, right?

Not necessarily.

As a will-maker, you may not be able to prevent family members and dependants excluded under your will from ultimately making a claim for a share (or a greater share) of your estate after your death.

A will-maker’s freedom of disposition is curtailed by the Succession Act (Act). This Act entitles certain eligible persons to make a claim against another’s estate.  If the claim is successful, the claimant can receive provision or additional provision from the deceased’s estate.

Will-makers may view this as unfair. Those disinherited by a family member may see this differently. Family provision law recognises that, although people are free to distribute property by way of a will after they die, they also have a responsibility to provide for certain people, usually family members or dependants.

So who may make a claim under the Act against a deceased’s estate?

  • a spouse
  • de facto partners
  • a child
  • a former spouse
  • a dependent grandchild or member of the household
  • a person with whom the deceased was in a close personal relationship at the time of their death

If the Court is satisfied that the claimant is an eligible person, it must then decide whether the deceased made “adequate provision for the proper maintenance, education or advancement in life” for the claimant.  

If the Court determines that adequate or proper provision has not been made by the will of the deceased, then the Court may make an order under the Act.  

What is the claimant entitled to receive?

This is entirely at the discretion of the Court. The Court must determine a monetary sum that it believes the deceased ought to have provided the claimant to satisfy their obligation to make adequate provision for the claimant’s proper maintenance, education or advancement in life.

Although the Court has a discretion in determining this provision, it must consider certain factors which may increase or reduce the provision ordered for a claimant. Some of these factors include

  • the nature and size of the deceased’s estate
  • the present and future means and needs of the claimant
  • the nature and length of the relationship between the claimant and the deceased
  • competing claimants and beneficiaries
  • the character and conduct of the claimant and other persons, including the deceased
  • the deceased’s reasons for his or her dispositions

As the Court has a wide discretion it can be difficult to predict how it will respond to claims. Reviewing case law can be helpful.

Successful applications for provision under the Act

Portis v Green [2017] NSWSC was a successful family provision claim from the only child of the deceased. The deceased left his entire estate to charity. There was an estrangement between the deceased and the applicant child. The child was in financial need and the Court held that the estrangement did not override the deceased’s obligation to ensure adequate provision for his child.

In Saba v Saba [2016] NSWSC a successful family provision claim was made by the daughter of the deceased. The deceased left modest amounts of money to his daughters and divided the balance of his estate between his sons. The applicant daughter played a major role in the care of the deceased in his later years and took time off work for this. The applicant had a large mortgage and a moderate income. The Court held that the deceased did not provide adequate or proper provision for the advancement in life of the applicant daughter taking into account she had sacrificed the opportunity to reduce her mortgage to care for her father.

If you believe your will may be at risk from a family provision claim or if you are contemplating making a will that excludes certain family members or dependants, we would be happy to advise you further on the application of the Act and how you can best ensure your testamentary wishes are carried out within the bounds of applicable law.

Alternatively, if you have been disinherited by a family member or think this might occur in the future, we can advise you on your rights to make a claim for provision under the Act. Contact us today on (02) 9231 2466 to speak to our experienced Estate Planning team.