Biological Children: Is Equal Distribution Necessary?

Published 01 May 2012

A common question that arises on the death of a parent is, whether the children of the deceased should all receive the same amount from the Estate?

Under the New South Wales Succession Act, children of the deceased are automatically deemed “eligible persons” entitled to make a claim on the Estate, if they believe that they have not been properly or adequately provided for in the Will.

When considering a family provision claim by a child of the deceased, the Court will look at the following matters:

  1. Any family or other relationship between the child and the deceased, including the nature and duration of the relationship;
  2. The nature and extent of any obligations or responsibilities owed by the deceased to the child, to any other person who has made a family provision claim and to any beneficiary of the deceased’s Estate;
  3. The nature and extent of the deceased’s Estate and any liabilities of the Estate;
  4. The financial resources and needs, present and future, of the child and of any other person who has made a family provision claim and any beneficiary of the Estate. This will include the financial circumstances of any person the applicant is cohabiting with;
  5. Any physical, intellectual or mental disability of the child and of any other person who has made a family provision claim as well as any beneficiary of the deceased’s Estate;
  6. The age of the child;
  7. Any contribution that the deceased made to the acquisition, conservation and improvement of the deceased’s Estate, or the welfare of the deceased for which adequate consideration was not received;
  8. Any provision for the child during the deceased’s lifetime, or in the Will of the deceased;
  9. Evidence of the testamentary intentions of the deceased;
  10. Whether the child was maintained, wholly or partly, by the deceased and whether any other person is liable to support the child; and
  11. The character and conduct of the child before and after the death of the deceased.

Was the provision for the child inadequate for their proper maintenance, education and advancement in life?

When considering whether the provision made for a child was inadequate or what, in all of the circumstances, was the proper level of maintenance appropriate the Court will have regard to the following:

  1. The respective financial positions of the children of the deceased;
  2. The size and nature of the deceased’s Estate;
  3. The totality of the relationship between the deceased and the child; and
  4. The relationship between the deceased and other persons.

The expectation of parents and children

The expectation of parents and children will vary depending on the age of the child. However, the Courts accept that a child does not automatically cease to be a natural recipient of parental ties, affection or support, as they grow older and leave home.

This has been shown in numerous Court decisions where an adult child, who has left home, falls on hard times. In these circumstances it has often been held that, where there are assets available, the community may expect a parent to provide a buffer for the child against the contingencies of life. This can also extend to assistance in retirement where the child has been unable to accumulate superannuation and if no other order was made on the Estate, that child would be left destitute.

Is equal distribution between siblings necessary?

According to the Courts, the obligation to make equal provision for siblings is not necessary. A relevant consideration of the Court when there are competing claims between siblings will be the quality of the relationship that the deceased had with each child.

If you have been left out of your parent’s Will, you need to speak to a legal specialist practicing in this area, who can explain your rights and assist in looking after your interests.

Contact GMP Contesting a Will Lawyers to book a free first consultation. At the first consultation we will discuss with you in a professional friendly manner the details of your situation and advise you if and how you should proceed.

For free over-the-phone advice, or to take advantage of our free face-to-face consultation, call our expert lawyers today at Gerard Malouf & Partners on our Free Call Number 1800 004 878.

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