The passing of a loved one is often an extremely emotional and overwhelming experience, and things can be made even more difficult if there are disputes regarding the distribution of the Estate.
In the wake of such loss, questions about who is entitled to claim assets from the deceased’s estate can quickly become contentious matters. Understanding who has the legal right to make a claim on an estate is crucial for navigating these often complex and sensitive situations. Determining eligibility can have significant implications for the distribution of assets and the resolution of disputes.
Deceased’s Will vs Beneficiary Entitlements
Amidst the grieving process, the period following a loved one’s passing can be further complicated by challenges surrounding the deceased’s Will and their intended distribution of the Estate.
This can be particularly stressful if a beneficiary believes that they are entitled to a larger portion of the Estate than allocated in the Will. Similarly, there may be an associated party who feels that they are entitled to a claim on the Estate and find themselves omitted from the Will document altogether. The ensuing disputes can amplify the emotional strain already present, underscoring the importance of clarifying who holds the right to make a claim on the estate and under what circumstances.
While preparing a Will is an important step towards making sure that Estates are to be distributed according to the deceased’s wishes, it does not necessarily guarantee that the final distribution will always occur exactly as set out in the Will.
The preferred scenario for any estate dispute is to reach a negotiated agreement with the executor and/or the other beneficiaries. However, unfortunately the dispute is not always able to be resolved in that way. If you have been left out of a Will, or believe that you are entitled to more than you have been provided for, and you are unable to reach an agreement, you may be eligible to make a family provision claim as an “eligible person” under Section 57 of the Succession Act 2006 (NSW).
Who is an ‘Eligible Person’ for an Estate Dispute?
A family provision claim is an application made to a court by an “eligible person” for a share, or larger share than was initially allocated, from the estate of a deceased person.
In New South Wales, an “eligible person” includes the following:
- A spouse of the deceased at the time of the deceased’s death
- A de facto partner of the deceased at the time of the deceased’s death
- A child of the deceased
- A former spouse of the deceased
- A person who:
- was at any particular time wholly or partly dependent on the deceased, and
- is a grandchild of the deceased, or
- was a member of a household of which the deceased was a member
- A person with whom the deceased was living in a “close personal relationship” at the time of the deceased’s death.
Some individuals, such as a current spouse or children of the deceased, will find it relatively easy to establish that they are an “eligible person” based on their relationship with the deceased.
Other individuals, such as a grandchild, de facto or other dependant, will usually be required to provide evidence in order to establish that they fall into one or more of the above categories and are therefore eligible to make a family provision claim.
Defining a De Facto Relationship for an Estate Dispute
In order for a de facto partner to be considered an “eligible person” they must have been in a “de facto relationship” with the deceased at the time of the deceased’s death as defined in section 21C of the Interpretation Act 1987 (NSW).
The above act defines a person as being in a “de facto relationship” with another person if they have a relationship as a couple living together and are not married or related by family.
In order to determine the nature of the relationship, and subsequent eligibility to make a claim on the estate, all factors of the relationship are taken into account, including:
- The duration of the relationship
- The nature and extent of the couple’s common residence
- Whether a sexual relationship exists
- The degree of financial dependence or interdependence, and any arrangements for financial support, between the couple
- The ownership, use and acquisition of assets
- The degree of mutual commitment to a shared life
- The care and support of children
- The performance of household duties, and
- The reputation and public aspects of the relationship.
It is important to note that none of the above matters are essential in determining whether two individuals are in a de facto relationship. Rather, they all play a part in the court determining whether a de facto relationship existed.
Applications for Other Claimant’s to Prove Their Eligibility
A person that does not qualify as a de facto partner may be eligible to make an application on another basis, such as a dependent household member of the deceased.
Grandchildren, other household members of the deceased, a person living in a close personal relationship with the deceased, and any other person who was dependent upon the deceased person at some time, may also be able to dispute their provision under the estate and make a family provision claim.
Let’s take a look at grandchildren as an example. For a grandchild to be considered an “eligible person” for a family provision claim they must show they were wholly or partly dependent on the deceased at any time.
It is not enough that a grandchild’s dependence is an indirect result of the grandparent providing support or maintenance for their own adult child thereby indirectly benefiting the grandchild.
To establish dependency in the relationship between a grandchild and the deceased:
- the dependency must be immediate and direct
- the gifts or benefits received by the grandchild from the grandparent must be of such regularity and significance that it can be said that the grandparent assumed responsibility for the support and welfare of the grandchild.
What Does the Court Consider when Considering an Estate Dispute Claim?
The court will consider various factors when making it’s ruling as to whether to make a family provision order. These may include things such as:
- the relationship between the claimant and the deceased
- the reasons why the claimant was left out of the will
- the circumstances of the claimant (including any current or future financial needs, financial resources etc.)
- what contributions the claimant made towards the estate during the will-maker’s lifetime
- how dependent the claimant was on the will-maker during their lifetime
- the size of the estate
- the circumstances of the other beneficiaries
It is important to be aware that family provision claims must be made within 12 months from the deceased’s death.
Seek Expert Advice for Your Estate Dispute Claim
Estate disputes can be a complex and sensitive issue to navigate, which is why it is so important to engage the services of professional and experienced estate lawyers.
If you believe that you may be entitled to make a claim on a deceased person’s estate, or you need advice in relation to family provision claims or other estate dispute matters, contact our team of experienced estate lawyers at The Quinn Group. Call us on 1300 QUINNS or +61 2 9223 9166 or complete an online enquiry to arrange a teleconference or appointment and discuss your individual estate dispute situation.
