Miss out of a will

If a person does not receive a share of an estate of a deceased person, or alternatively receives a share that appears to not be appropriate, an application can be made to the Supreme Court of New South Wales under certain circumstances, and in particular, if the claimant is eligible under the law. Such a claim is generally referred to as a family provision claim.

Merits of the Claim

There are several factors that must be considered in determining whether someone has a worthwhile claim, such as the eligibility of a claimant, the relationship between a claimant and the deceased, the value of the deceased’s estate, the location of the properties in the estate and jurisdiction of the Court, financial circumstances of the claimant, future needs of the claimant, whether other dependants are being supported financially by the claimant, health of the claimant and whether there are any mental or physical disabilities suffered by the claimant.

However, the determining factors in family provision claims are often complicated and may be considered from different angles. It would be beneficial to obtain legal advice in the first instance to consider whether or not there is a potential claim and whether commencing litigation is legitimate and cost effective.

One of the main issues concerning a family provision claim is where the deceased either did not make any provision or made an inappropriate provision to a beneficiary of the Will.

In considering family provision claims, the Court gives sufficient regards to the deceased’s testamentary wish.

Accordingly when preparing a Will it is important to include a detailed testamentary wish as to the reasons for making or not making provisions out of the estate to the beneficiaries, particularly in a circumstance where some beneficiaries have been allocated less provision than others. One of the examples is when a beneficiary has already received sufficient provision from the properties prior to the death of the testator.

Different Provisions to Different Beneficiaries

Salmon v Osmond [2015] NSWCA 42 was an appeal by the executors of the estate of the deceased. One of the grounds of appeal was that the Court erred in failing to give sufficient regard to the testamentary wish of the deceased to favour one child over the other children in distribution of the deceased’s estate.

The deceased outlined in his Will why he showed preference for one child over the others. The Court granted further provisions out of the estate of the deceased, in particular to one of the adult children who was not granted any provision from the estate under the Will other than forgiving the adult child’s debt to the deceased.

The Court of Appeal held that: “A testator’s explanation of why he made certain dispositions is a relevant factor in family provision cases, and the primary judge erred in not giving it appropriate weight. However, the testator’s motives are not necessarily determinative of a claim under s 59 if the Court nonetheless finds that adequate provision has not been made. [67]-[78]”

It was also held that in determining what an adequate provision is under s59, the Court is to have regard to the testator’s competing obligations to other claimants.

Again, there are several complexities with this issue in family provision claims and each case will be determined on its merits. It is important to obtain legal advice for both beneficiaries and executors when there is a potential dispute in relation to the distribution of the estate of a deceased or the testator wishes to exclude or treat beneficiaries differently.

Our Services

Pavuk Legal can assist in relation to Applications for a grant of probate, complex estate litigations, administration of an estate, recovery of estate assets and acting for aggrieved beneficiaries, creditors, trustees and executors.

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