Adult Children and Family Provision Claim

While Australian law allows anyone to leave any part of their estate to whom they wish, it also recognises a moral duty to adequately provide for their family (and possibly others).

 In NSW, the Succession Act 2006 sets out those categories of persons who are eligible to make a claim on the estate of a deceased person which includes adult children who constitute the largest category of claims. Being eligible does not, however, necessarily mean their claim will be successful.

Considerations for a Successful Adult Child Family Provision Claim

To have a chance of a successful claim there are some conditions to be met. Firstly, the claim normally needs to be made within 12 months from the date of the Will-maker’s death though the Court might consider making an order ‘out of time’ if there is sufficient cause. Secondly, the Court will consider whether the deceased has already provided the adult child sufficiently for their proper maintenance, education or advancement in later life. Thirdly, in assessing the prevailing circumstances, the Court will consider the factors set out in s60(2) of the Succession Act. These factors include:

(i) The relationship between the deceased and their adult child, including its nature and duration. For example, the relationship may be close and enduring or it might have been tempestuous possibly including a period of estrangement.

(ii) The size of the estate. If the estate is substantial and there are only a few beneficiaries there may be more scope to make a provision for an adult child who has not been adequately for.  Conversely, where there is a small estate this may not be possible. Making a provision inevitably impacts on other beneficiaries.

(iii) The financial resources and needs, both now and in the future, of all the potential beneficiaries. The Court will consider whether the adult child has adequate financial resources and earning capacity, whether there are others making a claim, the position of other beneficiaries who have an entitlement and whether the adult child is likely to have additional needs because of their circumstances, such as poor health.

(iv)The age of the adult child may be relevant with regard to future financial needs and prospects.

(v) Any provision made during the deceased’s lifetime. For example, did the deceased provide financial assistance to acquire property?

(vi) The nature and extent of any obligations or responsibilities owed by the deceased to the adult child. For example, if the child was dependent on the deceased in some way.

(vii) Any contributions, whether financial or otherwise, made to enhance the estate or the deceased’s welfare by the applicant.

(viii) The character and conduct of the adult child towards the deceased.

(ix) The testamentary intentions of the deceased. There may have been a particular reason why the deceased did not wish an adult child to receive a share of the estate and may have documented these reasons. This may not necessarily be fatal to a claim but is an important consideration.

The particular circumstances of every case will be taken into account in a Court making a determination as to whether or not to make an order for a provision or additional provision from an estate. The recent case outlined below demonstrates some of these factors in practice.

Case Study: Paul v Satici (2022) NSWSC 922    

In this case the youngest child of the deceased, her father, had been appointed as Executor of the Will. She was also left a legacy of $300000.The balance of the estate was then to be divided into four equal parts. One quarter was to be distributed among ten grandchildren. The other quarters were to go to his adult children equally. One of the children sought orders against the estate for a larger provision so as to provide for her ‘proper maintenance’.

The Supreme Court found that her share of the estate would have come to $407500 after expenses. This was not considered to be an adequate provision for her. She was a single mother with three dependent children. Her income, largely consisting of government support, only met basic expenses.

The Court recognised... ‘that applications for family provision do not call for a precise delineation of the components of the provision, but rather an evaluative assessment of what will meet the proven needs of the plaintiff in the light of all the facts before the Court...’.

The Court determined that she should receive an additional provision. The Court noted the size of the estate and ages of her children though it was felt her moral claim did ‘not extend to being given a fund to buy her own property’. Other factors contributing to this decision were the close relationship she had with her father; her three children were financially dependent on her and it would be several years before she would be able to return to full-time work though she was of an age where she would be able work again.

As regards the quantum, it was decided that her share of the estate would be increased to $700000. This was calculated in two different ways. The first was based on allowing for the rent due until such time as her youngest child (age 13) reached 18 years of age plus a further $100000 for contingencies. The second method was calculated in accordance with the applicant’s estimate of her income and expenses for the period until her youngest child reached 18 plus expenses in the event that one of her children continued to live in the family home until they finished at university.

The amount required to meet this additional provision was to be met out of the shares of her siblings and not the grandchildren.

Contact our Will Contest Lawyers based in Sydney, NSW

If you are considering contesting a Will, please contact the experts at Szabo & Associates Solicitors on 02 9281 5088 or complete the online contact form. We can also help those contemplating contesting a Will in Queensland, Victoria, Tasmania, Western Australia and South Australia as well as NSW.