Have you been left out of the ‘Will’ of a loved one, or do you feel as if the gift left to you is inadequate? Unfortunately, this is a relatively common story.
The law has responded to this by allowing eligible individuals to make a Family Provision Claim under the Succession Act 2006 (NSW). The Act defines an eligible person to include, a spouse of the deceased person, a de facto partner, a child of the deceased, a former spouse, the deceased persons grandchild, or a person with whom the deceased person was living in a close personal relationship at the time of the deceased person’s death. For more information regarding who can make a Family Provision Claim, click here to visit our previous article.
Despite children of the deceased persons being specifically included under the statute, adult children still face difficulty when making a claim.
Take, for example, the recent case of Olsen v Olsen [2019]. Here, a 61-year-old adult son made a claim for provision from the estate of his late Father, after his Father failed to include him in his Will. At the end of his life, Olsen’s Father had left his entire estate to his second wife, and their three children. Unfortunately, no provision was made for the plaintiff. Mr Olsen claimed that he was an entitled person under the statute and provisions should therefore be made for him from his Father’s estate. The Court rejected Mr Olsen’s claim, ultimately finding that Mr Olsen was ‘able to maintain and support himself’ and thus, intervention by the Court was not warranted.
There is thus the prevailing question, when can an individual make a claim for provision? According to section 59 of the Succession Act 2006 (NSW), the Court may make a family provision order in favour of an eligible person, where the Court deems it necessary for that person’s proper maintenance, education or advancement in life or if the court finds that person to be have been an dependant or if the deceased led that person to believe that he or she would be left with a portion of the deceased’s estate.
If you know someone having a possible right to an estate or hasn’t been included in someone’s will, please do not hesitate to contact Freedman and Gopalan on 8917 8700 or by filling out the enquiry box.