Most people who have brothers or sisters will admit to at least a bit of sibling rivalry. But what happens when a family feud spills over into the courtroom?
The death of a parent is a traumatic experience, and it is common for children to feel that one of their siblings has been unfairly favoured in the deceased’s will.
In past generations, parents frequently left their entire estate to the eldest son. This practice is becoming more rare, but still occurs among farming communities and Asian families.
So what are your entitlements to your parent’s estate? Does NSW legislation allow some siblings to receive a greater share of the assets than their brothers and sisters? Let’s try to answer these questions.
Making a family provision claim
Under the Succession Act 2006 (NSW), eligible people – including the deceased’s children – can pursue a family provision claim against the estate of a loved one.
The courts must then decide if the deceased’s will adequately considers the “proper maintenance, education or advancement in life” of the claimant. If a judge feels the deceased failed in this duty, they can make an order that provides the plaintiff with a greater share of the available assets.
When an estate is divided between children, claims often arise when the distribution is uneven, with certain siblings receiving more than the others.
However, disputes still occur when the assets are shared equally. This may happen if one sibling believes they were closer to the parent or provided more help and support in the lead-up to their death.
Which sibling should receive more?
The law doesn’t require parents to distribute their estate equally between their children, nor is favouritism rewarded.
Instead, the courts consider various factors when deciding the appropriate split of an estate between siblings. These include:
- The deceased’s testamentary wishes (how did they distribute the estate in the will);
- The age, financial situation and health of the claimant/s;
- The relationship between the claimant/s and the deceased;
- Whether the claimant or claimants were dependant on the deceased; and
- What provisions the deceased made to the claimant/s during their lifetime.
- In other words, if some siblings have far greater need for provision from the estate than others, the courts are more likely to give them a more favourable share.
This can even occur in circumstances where the claimant’s proportion of the estate was equal to or greater than their siblings prior to contesting the will.