Friends with Benefits – Family Provision & Estate Litigation

Family Provision

Family provision claim often commences by persons who intend to challenge the will of a deceased in the event the deceased failed to adequately provide for their needs, proper maintenance or advancement in life.

The law of succession differs in each state. However generally, the eligible claimants of a family provision claim as outlined by state legislation are spouses, de-facto partners, children, former spouses. It could also be grandchildren, dependents of the deceased or member of the deceased’s household.

The question arises as to what could happen to the friend of the deceased in respect to claiming a benefit from the estate. The legislation does not give an inherent right to a friend of the deceased to make a family provision claim. Having said that it does not mean that the deceased’s friends are not eligible to the provision of a friend’s will.

Further detailed review will be needed to find specific criteria that would be enable a eligible person under legislation to benefit from the estate.

In NSW under the Succession Act 2006 (NSW) (the Act) a friend may be an eligible person to make a family provision claim in so far as he or she be able to show to the court that he or she is wholly or partially dependant on the deceased or was a member of the same household as the deceased at the time of the death.

Once the issue of eligibility is addressed and confirmed, there are several other evidential requirements that will ascertain the prospects of success of the friend’s family provision claim.

In Rakovich v Marszalek [2020] NSWSC 589 a friend was found an eligible person of the deceased under the Act. The deceased died intestate that is the deceased did not have a will at the time of his death.

The plaintiff was the deceased’s close friend for over 30 years and he was not financially well off.

Further the court was satisfied with the friend’s oral evidence in the witness box, the friend’s nature, duration and quality of the his relationship with the deceased, the cards sent to the friend by the deceased, the evidence of a neighbour who corroborated the evidence of the friend, the medical reports of the deceased referring to the good relationship of the friend with the deceased and the relationship of the friend’s family with the deceased up until the time of the death.

It is also important to note that other beneficiaries were distant nieces and nephews who on the evidence had never met the deceased, were living overseas and were rarely in communication with the deceased.

The court held that the provision made for the friend pursuant to the operation of the rules of intestacy is inadequate for his proper maintenance or advancement in life, orders that he receive, by way of provision, out of the estate of the deceased, a lump sum equating to 45 per cent of the net estate of the deceased.

Hence, if you are in doubt as to your rights in relation to the estate of a deceased, it would be best to leave the hard work to the professionals and seek legal advice.

For minimal costs we would be able to review the matter and provide you with initial advice as to your prospects of success.

Whether you are looking into challenging a will or defending the will of the deceased against a claim of family provision or whether you are an executor, beneficiary or an interested party in the estate of a deceased, one of our experienced solicitors will be able to assist you in assessing your case or answering your questions. Feel free to contact our office to speak with one of our friendly solicitors today. Call our office on 02 9251 3611 or email us at

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