A family provision claim is a type of inheritance dispute available to people people who feel they have not received an adequate share of a loved one’s estate in a will. One of the key elements of a family provision claim is eligibility, as only certain individuals are entitled to challenge a will.
The importance of this issue was recently highlighted in a NSW Supreme Court case, which involved a man attempting to pursue a claim on his grandfather’s estate.
According to the Succession Act 2006, grandchildren are only considered eligible if they were wholly or partly dependent on the person who has passed away or were a member of the deceased’s household prior to their death.
In this particular case, the defendant and executor for the testator’s estate, NSW Trustee & Guardian, argued that the claimant was not financially or emotionally dependent on the deceased.
However, the claimant said he heavily relied on his grandfather from a young age because his father had been in a motorcycle accident that resulted in catastrophic injuries. The plaintiff’s father was confined to a wheelchair and struggled to speak.
Significantly, the man moved into his grandfather’s home to help care for his father for a period of approximately six months. During this time, he relied on his grandfather for food, some living expenses and accommodation.
Filing a family provision claim
The deceased made a number of wills in the years prior to his death, but the final and most recent version left the majority of his $1.3 million estate to a female friend.
Court documents show the residual amount was to be distributed to his great-grandchildren – the claimant’s sons and daughters. According to the woman who was due to receive the majority of the estate, the deceased told her he intended to leave his grandson out of the will because he was a “bit of a no-hoper”.
Nevertheless, the judge decided the claimant was eligible under the Succession Act 2006 and partly dependant on the deceased, thus deserving a proportion of the estate. This was despite the plaintiff missing the deadline to make a claim due to a mistake regarding the date of his grandfather’s death.
The man received a lump sum payment of $225,000, which was taken from the share allocated to the primary beneficiary. The costs of the plaintiff and the defendant were borne by the estate.
