Family Provision Claims by an institutionalised child

Published 01 Jul 2012

Children of a deceased person are automatically “eligible persons” to make a claim on their parents Estate if they have not been properly provided for in their parents Will.

However, there are two categories of children who may not realise that they have the right to make a family provision claim, namely:

  1. Children of the deceased who suffer from a mental disability requiring institutionalisation; and
  2. A ward of the State where the child’s needs are being met by the State and the institution.

Just because a child is institutionalised or a ward of the State does not prohibit them from making a family provision claim under the New South Wales Succession Act or the other similar legislation in place throughout Australia.

As a child of the deceased they are clearly eligible to make a family provision claim. However, difficulties can arise when the child has to prove that they have a need for provision out of the Estate.

These difficulties are summarised below:

  1. Quite often there was no relationship between the deceased and the child on account of the institutionalisation or of the child being made a ward of the State. This difficulty can be overcome by evidence establishing that the lack of such a relationship was not the fault of the child and that the deceased had a moral obligation to provide for the child.
  2. Where the child is a ward of the State or institutionalised their needs are met by the State or the institution. This makes it difficult to prove that the child has a need of care and assistance and that such need should be met by the Estate.

The decisions of the Court in these circumstances centres around whether the child has a claim on the Estate for “extra comforts”. These extra comforts can include money for outings or extra clothing. There are numerous Court decisions where a significant bequest has been made from the Estate to meet these “extra comforts” for the anticipated lifetime of the deceased.

It is extremely important to remember that a child who has been institutionalised or made a ward of the State is an eligible person to make a claim on the Estate of a deceased parent. Claims by an institutionalised child will need to be supported with evidence of the child’s needs or “extra comforts” so that the Court may make the appropriate orders for their proper maintenance from the Estate of the deceased parent.

If you are a child who has been left out of a Will you need to speak to a legal specialist practicing in this area to determine whether you are an eligible person to make a family provision claim and exactly what evidence is required to support your claim.

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.

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