Can a Friend Make a Family Provision Claim on an Estate Where There Is No Will?

Only eligible individuals can pursue a family provision claim against the estate of a deceased person. These individuals include spouses, children and other family members, but what about non-family members such as a friend of a deceased? Can they be entitled to a share of an estate whether there is a Will or not?

What does the law say?

Legislation does not give an inherent right for a friend of the deceased to make a family provision claim, but that does not necessarily exclude them either. The issues around whether a friend can make a claim on an estate, in the circumstance where there is no Will, was the essence of a recent successful claim by a friend heard by the Supreme Court of NSW in Rakovich v Marszalek [2020]. 

As it stood, Marszalek's estate was to benefit his only living relatives - these were his two nieces and two nephews. There was, however, a close friend of the deceased called George Rakovich who made a family provision claim against the estate. 

Key facts of the case

Horst Marszalek died in February 2018, aged 79. He never married and had no children. His parents were dead, and his brother died shortly after him. As he had died intestate, the rules of intestacy applied, meaning his estate was to benefit his closest living relatives, who contact with had been sporadic.

While he had very little family that survived him, Marszalek did have a close friend, George Rakovich, of 30 years standing. Based on the intestacy rules, Rakovich would not receive a share of his friend's estate. Rakovich was divorced and had from time to time had lived with his friend, relying on him not just for a place to live, but as a confidant and advisor.

From 2012, Rakovich lived with his friend full-time. He worked and provided $100 per week towards their shared living expenses. After his friend's death, Rakovich continued to live in the property until November 2019. He did not pay the estate rent but maintained the home and paid the property expenses.

There had been no intimate relationship but rather one of support. The Court heard evidence of "mutual dependence", as Marszalek had mental health issues and relied on his friend when needed.

What was the basis of the claim?

Rakovich commenced proceedings for a provision out of the deceased’s estate. The basis for the claim was that he was a person who had been, at particular times, wholly or partly dependent on the deceased and who was at the time of death, a member of the deceased’s household. This contrasted with the deceased’s nieces and nephews who, as it transpired, had never even met the deceased, were living overseas and had infrequent communication with their uncle.

The Court noted evidence that the nieces and nephews were of relatively modest financial means but also that Rakovich’s poor financial circumstances were unlikely to improve at his age and given his medical condition.

What were the main issues in the case?

In this case, the absence of a Will meant that the rules of intestacy applied which did not accommodate any provision for the deceased's close friend. In response, Rakovich brought a claim for provision out of the estate of his deceased friend under s50 of the Succession Act 2006 (NSW) (the "Act").

The Court had to decide on two key issues: was the friend an “eligible person” to make a claim and, if so, to what extent might the deceased have provided for his friend if a Will had been made?

As it happened, there was no real dispute that the applicant was an eligible person. Rakovich had lived with Marszalek and relied on him for housing, emotional care and financial support, satisfying the requirements of the Act as regards dependency and household membership.

Evidential requirements

Once the issue of eligibility can be confirmed, there were evidential requirements to be considered to determine the success and amount of a claim. The Court had to determine what Rakovich should receive from the estate. In doing so, the Court considered what was adequate for his needs and what was proper in the circumstances.

Section 60 of the Act sets out what the Court will consider before making orders in a family provision claim. In this case, of relevance, were the:

• Size and nature of the estate
• Relationship between the various parties to the deceased
• Competing claim of the nephews and nieces
• Financial circumstances of the parties involved

What did the Court decide?

The Judge accepted the claimant was an eligible person and that he had been left without “adequate provision” by the intestacy rules. An order was made whereby he received a lump sum of 45% of the net value of the estate to provide for his “proper maintenance and advancement in life”. The remaining 55% was to be divided between the nieces and nephews with each receiving 13.75%, providing a reasonable amount for their life's requirements.

What does this case mean?

The 2006 Act sets out specific criteria required to legitimise a claim. As a non-family member, a friend must show, for example, that they were wholly or partly dependent on the deceased at some point in time. That said, it may still be able to make a claim even if these stipulations are not met if, for example, the claim was based upon a promise to receive a share of the estate in return for a service such as a being non-remunerated carer. In either situation, a review would be needed to establish the right to make a claim.

If the deceased had prepared a Will, the Court proceedings could well have been avoided, emphasising the importance of having an up-to-date Will.

Contact our Wills & Probate Lawyers Sydney, NSW

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