A Change in Evaluation of family Provision claims under the Succession Act

Published 11 Oct 2012

The recent Supreme Court of Appeal decision in Andrew v Andrew [2012] NSWCA 308 foreshadows an important change in the way that family provision claims will be dealt with by the Courts. This change arises from different wording used in the Succession Act 2006 (NSW) compared to the now repealed Family Provision Act 1982 (NSW).

In this case the deceased was survived by five children and had an estate valued at $800,000. Under her Will the deceased left a $10,000 legacy to her eldest daughter and the remainder of her estate to the remaining four siblings. Her eldest daughter made application to the Court claiming that her mother had made inadequate provision for her in the Will. Her application for a family provision order under Section 59 of the Succession Act was refused on the basis that the deceased “had spent more than 35 years of her life without any emotional, or other support or assistance from, or even acknowledgment by, her daughter.” This estrangement, instigated by the daughter, meant that the daughter had abandoned and forfeited any moral claim on the deceased.

The daughter appealed the decision. On appeal it was acknowledged that there was no doubt that the daughter was in financial difficulty and that greater provision could have been made for her from her mother’s estate.

During the hearing of the appeal the Court was required to consider whether the making of a family provision order under the Succession Act was different to the making of a family provision order under the repealed Family Provision Act.

The Court found that the Succession Act differed from the Family Provision Act in that:-

(a)    The Family Provision Act required that the Court ‘shall not make a family provision order unless it was satisfied that the provision made by the deceased was inadequate’.

(b)   The Succession Act required that the Court may make a family provision order ‘if the Court is satisfied that the deceased has not made adequate provision’.

The differences in the legislation may mean that the discretion available to the Court to make a family provision order has been widened under the Succession Act. In essence, a claim under the Succession Act may have a greater prospect of success on account of the different wording used in the Act. On the basis of this new interpretation of the making of family provision orders under the Succession Act the Court of Appeal overturned the decision at first instance and made an order that the daughter receive an additional $50,000 from her mother’s Estate.

Relationship or marriage breakdown? A recent Court decision highlighting the need to protect your Estate

The recent Supreme Court decision in Filingham v Harrison & Carrette [2012] NSWSC 1145 highlights the need to ensure that a formal property settlement is entered into following the breakdown of your marriage or de facto relationship.

In this case the deceased appointed his two ex-wives as Executrixes of his Estate and gave his Estate to his two children, one from each of these marriages, in equal shares.

However, the deceased had entered a third marriage and although the deceased and his wife were separated a divorce application signed by the deceased in April, 2010 was not filed prior to his death in November, 2010. The deceased’s wife made a family provision claim on the Estate. As she was still married to the deceased at the time of his death she was automatically an ‘eligible person’ to make such a claim under the Succession Act.

The Executrixes of the Estate argued that the arrangements made between the deceased and his wife at the time of their separation amounted to an informal property settlement and as a result, the deceased’s wife was not owed any moral duty by the deceased to provide for her in his Will.

The Court found that the benefits given to the wife after separation amounted to $15,000 and in the circumstances, one could not regard the parties as having an informal property settlement such that there was no longer any moral duty owing to the wife of the deceased. In addition, the Court found that the deceased’s wife had been left with inadequate provision and that an overall consideration of the circumstances meant that some provision should be made for the deceased’s wife from his Estate. The Court ordered that the sum of $125,000 be paid out of the Estate to the wife of the deceased.

Tips on how to the best result from your family provision claim

1.      Complete a time line of events demonstrating your history with the deceased. This should include any financial support or assistance provided to the deceased as well as any non-financial support for example taking the deceased to appointments. But remember, as in Andrew v Andrew [2012] NSWCA 308 discussed above, estrangement with the deceased, even for a long period of time, does not mean you cannot make a family provision claim on the deceased’s estate.

2.      Have all your financial documentation prepared. These documents will be required to demonstrate that the deceased did not make ‘adequate provision’ for you from their Estate. This information should include your current income, expenses, details of your assets and liabilities as well as potential future expenses such as medical expenses from health issues.

3.      Make an appointment to see a Will Dispute Lawyer at GMP Contesting a Will Lawyers – we are accredited compensation specialists who have won in excess of $120 million in compensation Australia wide for our clients in the last 12 months.

Family Provision Claims on a “No Win No Fee” basis* and your first consultation is provided FREE.

Dont Delay, contact GMP Family Provision Claims Lawyers on 1800 004 878 and we will arrange an appointment at an office convenient to you. Your First Consultation is Free and we contest wills on a No Win No Fee basis supported by our Unique Service Guarantee.

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