You may be wondering whether excluding a grandchild from receiving a gift under your Will could potentially give rise to a claim being made on your Estate. Or perhaps conversely, you might be wondering if you have been unfairly left out of your grandparent’s Will.
Section 57 of the Succession Act 2006 (NSW) identifies and defines who an “eligible person” is for the purposes of making an application for a Family Provision Order (sometimes known as making a claim on an Estate).
Whilst the main categories of eligible persons may not come as a surprise to you, being a current or former spouse, de facto partner, children, or person living with you in a close personal relationship, section 57(1)(e) indicates that a person who was, at any particular time, wholly or partly dependent on the deceased person and who is a grandchild of the deceased is an eligible person.
Therefore, being a grandchild of the deceased does not automatically establish an entitlement to a family provision order, and in any application, the Court would need to be satisfied that the grandchild (applicant) was, at some point in time, wholly or partly dependent on the deceased. This might mean financial dependency or otherwise.
To establish this fact (and when considering to make an order at all) the Court will be guided by the existence of one or a number of factors as set out in section 60 of the Succession Act 2006. In summary, some of these factors include:
- The relationship between the applicant and deceased;
- Any obligations or responsibilities owed by the deceased to the applicant, as well as to any other applicant or beneficiary to the Estate;
- The Estate itself;
- The financial resources (including earning capacity) and financial needs (present and future) of the applicant and any other applicant seeking provision from the Estate;
- The financial circumstances of any other person the applicant lives with;
- Any physical, intellectual or mental disability of the applicant, any other applicant seeking provision or any beneficiary to the Estate that exists, or that may reasonably be anticipated;
- The age of the applicant;
- Any contribution (financial or otherwise) by the applicant to the acquisition, conservation and improvement of the Estate, or the deceased or deceased family’s welfare, whether before or after the deceased person’s death and for which the applicant was not given adequate consideration for (such as payment but not including a pension);
- Any provision made by the deceased person for the applicant either during the deceased’s lifetime or made in the Estate;
- Evidence of the testamentary intentions of the deceased.
Therefore, it is highly dependent on the specific facts and circumstances surrounding the relationship.
Book in with Family Focus Legal to meet one of our Wills and Estate lawyers who will be able to provide advice regarding any potential family provision claims. Give us a call on (02) 4655 4224 or email info@familyfocuslegal.com.au today.
