Adult daughter family provision claim

Shelley v Prager [2020] NSWSC 1393
Supreme Court of New South Wales  Williams J
The plaintiff made a family provision claim as the adult daughter of the deceased.  The plaintiff was one of four adult daughters.  The beneficiaries of the will included the other three adult daughters, the adult grandson and the deceased’s wife.  The beneficiaries had a close relationship with the deceased depsit some difficult and sometimes abusive conduct of the deceased.   The claimant and the deceased had been estranged for a lengthy period and did not have a close relationship.  It was a modest estate and no property was designated as notional estate.  The plaintiff sought further provision from the estate of their father’s estate.  The net assets of the claimant and her husband were greater than the estate and significantly greater than the three beneficiaries who put their finanical circumstances in issue.  The court considered whether the deceased’s will made adequate provision for their ‘proper maintenance, education or advancement in life’.   Page v Hull-Moody [2020] NSWSC 411 – Harris v Carter [2020] NSWSC 196 – Ch 3 Succession Act 2006 (NSW)

held: The Court dismissed this application for a family provision claim.
contact annie@knokelegal.com.au if you need advice about family provision claims.

There are a number of categories of individuals who are eligible to make a claim on a deceased estate.  There are various factors that the Court considers when making a determination of whether furhter provision should be granted from an estate.

The  Succession Act 2006 NSW notes the following as eligible to make a claim;

Eligible persons

57 Eligible persons

(cf FPA 6 (1), definition of “eligible person”)

(1) The following are
“eligible persons” who may apply to the Court for a family provision order in respect of the estate of a deceased person:

(a) a person who was the spouse of the deceased person at the time of the deceased person‘s death,

(b) a person with whom the deceased person was living in a de facto relationship at the time of the deceased person‘s death,

(c) a child of the deceased person,

(d) a former spouse of the deceased person,

(e) a person:

(i) who was, at any particular time, wholly or partly dependent on the deceased person, and

(ii) 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,

(f) a person with whom the deceased person was living in a close personal relationship at the time of the deceased person‘s death.

Note : Section 60 sets out the matters that the Court may consider when determining whether to make a family provision order, and the nature of any such order. An application may be made by a tutor (within the meaning of the Civil Procedure Act 2005 ) for an eligible person who is under legal incapacity.

Note : “De facto relationship” is defined in section 21C of the Interpretation Act 1987 .

(2) In this section, a reference to a child of a deceased person includes, if the deceased person was in a de facto relationship, or a domestic relationship within the meaning of the Property (Relationships) Act 1984 , at the time of death, a reference to the following:

(a) a child born as a result of sexual relations between the parties to the relationship,

(b) a child adopted by both parties,

(c) in the case of a de facto relationship between a man and a woman, a child of the woman of whom the man is the father or of whom the man is presumed, by virtue of the Status of Children Act 1996 , to be the father (except where the presumption is rebutted),

(d) in the case of a de facto relationship between 2 women, a child of whom both of those women are presumed to be parents by virtue of the Status of Children Act 1996 ,

(e) a child for whose long-term welfare both parties have parental responsibility (within the meaning of the Children and Young Persons (Care and Protection) Act 1998 ).