October 19, 2022

Have you been left out of a Grandparents Will?


Have you been left out of a Grandparent’s Will (or not adequately provided for)?

What is a ‘Family Provisions’ claim?

If you believe you have been left out of a Grandparent’s Will, you may be entitled to make a claim in respect of a deceased person’s estate under the Family Provision sections contained in the Succession Act 2006 (NSW).

There are six categories of persons who can make a claim in respect of the estate of a deceased person. A claimant must satisfy the court that ‘adequate provision’ for the ‘proper maintenance, education or advancement’ in life has not been made. In such cases a Court may issue a family provision order that takes effect as if the provision was initially a part of the deceased’s will.

The court will look at many factors in deciding whether proper provision has been made for the claimant, including looking at the fortune of the deceased person and a child’s station in life.

Qualifying as an Eligible person in a Family Provisions claim:

If the claim is made against an Estate of a late Grandparent, the claimant must satisfy an additional test which includes demonstrating to the court that there are factors that warrant the making of an application.

A Case Law example can be found in Misek v McBride (2017) where the claimant successfully demonstrated that she was living with her grandparents and had a strong personal relationship with them. The court also considered that the claimant was not in a favourable position financially. In finding for the claimant the Court considered the significant size of the deceased’s estate and awarded $46,000 to the claimant.

An eligible person to make a Family Provisions Claim includes but is not limited to:

  • A person who at any time was wholly or partly dependent on the deceased or was a grandchild;
  • A wife or husband of the deceased person;
  • A person living in a de facto relationship at the time of the deceased person’s death;
  • A child of the deceased;
  • A former spouse of the deceased;

The above-mentioned eligible person can make a claim on the following grounds:

  • If they were dependent on the deceased;
  • If the share of the deceased’s property is not adequate for their maintenance and support;
  • no adequate provision for the proper maintenance, education or advancement in life for the person has been made in the will of the deceased.
  • If the relationship between the deceased and the eligible persons began after the last Will was made;

Factors examined by the Court to determine the amount that will be provided if a claimant is successful include but are not limited to:

  • The value of the estate
  • The financial needs of the claimant
  • The age of the claimant
  • The contributions made by the claimant to the deceased person’s estate
  • The nature of the relationship between the deceased and claimant.

Are there time restrictions for my application?

Importantly, an application for a family provision order must not be made later than 12 months after the deceased person has passed.

A well-drafted Will:

The importance of a well-drafted Will is clear. If the Testator prepares a Will with a clear distribution of the assets amongst chosen beneficiaries, then at the very least the statutory rules of intestacy will not apply.

Important takeaways:

  • A grandchild can be a successful claimant on the estate of a Grandparent under the Family Provision Regime.
  • Claimants must satisfy certain categories to satisfy the court that there are factors that warrant the making of an application.
  • The claimant must establish that the deceased failed to make ‘proper’ provision for the eligible person.

The importance of specialist advice in determining if you are eligible to make a Family Provisions claim is clear.

For a free, no obligation review of your current circumstances, simply pick up the phone or email us on;
Call us now: 1800 893 836
Email us now: info@bizlawyers.com.au
Website: https://bizlawyers.com.au/services/wills-a.html

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