Eligibility for Family Provision claims: dependent grandchildren or household members

The first element, is a question of fact: Petrohilos v Hunter (1991) 25 NSWLR 343, 346 cited with approval in Ng v Morgan [2014] NSWSC 536 at [138] per Slattery J.

In Chisak v Presot [2022] NSWCA 100, White J outlined authority on the meaning of dependency:

[44]  […] On the question of whether the grandchild is an eligible applicant under s 57(1)(e)(i) the question is not whether the grandparent assumed a continuing responsibility for the grandchild’s maintenance, education or advancement in life, but whether, for a particular time, the grandchild was wholly or partly dependent on his or her grandparent. […]

[45]  In Simons v Permanent Trustee Co Ltd: Estate D. Hakim [2005] NSWSC 223 , Palmer J, referring to s 6(1)(d) of the Family Provision Act 1982 (NSW) (which was in materially the same terms as s 57(1)(e) of the Succession Act) said:

[42] Dependence for the purposes of s.6(1)(d), so far as the cases have discussed, is seen as the giving of financial or other material assistance by the deceased over a significant period of time in order to meet a need of the eligible person, with the result that the recipient has come ordinarily to rely upon that assistance. In very many cases where a grandchild is held to be dependent on a testator grandparent, the giving of financial or other material assistance by the testator for the child’s maintenance and welfare is accompanied by the giving of natural love and affection, so that the child is dependent on the testator for both financial and emotional support. In some cases, the giving of financial support by the testator grandparent may be unaccompanied by love and affection but the child is still dependent upon the giving by the testator and is therefore an eligible person.

[43] However, the fact that the grandchild has a need, even an abnormally high need, for emotional support from a grandparent testator is not, on its own, sufficient to make a child dependent on the testator for the purposes of s.6(1)(d). The dependency which s.6(1)(d), and the Act generally, addresses is financial dependency. The Act is concerned only with the provision out of the estate of the deceased for the financial needs of those who had a claim on the testator’s testamentary recognition. It is not the policy of the Act to console with legacies those who, while in no financial need, feel that the testator did not love them enough or feel that they should have a monetary solace for the loss of a loving relationship.

[46]  However, it is not correct that dependency is limited to dependency on the provision of financial or other material assistance (Petrohilos v Hunter (1991) 25 NSWLR 343 at 346 –347 ). As Hope AJA, with the concurrence of Clarke and Sheller JJ, said in that case, a young child is properly and commonly said to be dependent on his or her mother as well as his or her father, regardless of where the money comes from.

[47]  The phrase “partly dependent” means at least “more than minimally” and perhaps “significantly”, although not “substantially” (McKenzie v Baddeley [1991] NSWCA 197 at [4] ). In Alexander v Jansson [2010] NSWCA 176 Brereton J (as his Honour then was), with whose reasons Basten JA and Handley AJA agreed, accepted that “partly dependent” involved more than “minimal” dependence (at [13]).

[…]

[54]  Sackville AJA, with whose reasons Macfarlan JA also agreed, said (at [139]):

[139] In short, as Payne JA points out, a finding of dependency is merely the first step in determining whether the circumstances give rise to a statutory obligation in the deceased person to make provisions out of his or her estate for the proper maintenance, education or advancement in life of the claimant. To construe s 57(1)(e)(i) as limited only to dependency of a kind that gives rise to a statutory obligation to make provision for the claimant tends to conflate the two quite distinct preconditions for the making of a family provision order. A claimant who establishes that he or she is an eligible person by reason of dependency on the deceased (and membership of the same household) may or may not be a person to whom the deceased owed an obligation to make provision by way of testamentary disposition. The concept of dependency in s 57(1)(e)(i) of the Succession Act is not to be limited by incorporating criteria that are only to be considered once the claimant establishes that he or she is entitled to apply for a family provision order.

[…]

[57]  I respectfully doubt that it is legitimate to read into s 59(1)(e) a requirement that partial dependency be “significant” rather than “more than minimal”. Section 57(1)(e) is merely a gateway for the court to consider whether there are factors that warrant the making of an application for provision by a grandchild out of his or her grandparent’s estate (s 59(1)(b)), and if so, whether provision ought to be ordered (s 59(1)(c)). The degree of dependence for a particular period of time will no doubt be relevant to those issues. With due deference to the reasons of Palmer J in Simons v Permanent Trustee and Re: Sherborne Estate and Basten JA in Page v Page, I do not think it appropriate to conflate questions relevant to those issues, such as whether the degree of dependence was such that the grandparent assumed parental responsibility for the grandchild, with the factual question of whether the grandchild did depend on the deceased for particular periods of time. I do not accept the primary judge’s reasons on this issue at J [329] quoted above.

It can be summarised from this passage that:

• Dependency for the purposes of s 57(1)(e) does not require that the deceased person assume a continuing responsibility for the prospective eligible person’s maintenance, education or advancement in life. It requires that for a particular time, the prospective eligible person was wholly or partly dependent on the deceased.
• Dependency commonly arises where the giving of financial or other material assistance by the deceased over a significant period of time in order to meet a need of the eligible person, with the result that the recipient has come ordinarily to rely upon that assistance.
• Emotional support alone will not ordinarily establish dependency; the concept primarily concerns financial or material reliance, although dependency is not limited to this.
• The requirement of being ‘partly dependent’ means dependence that is more than minimal, though it need not be substantial.
• Establishing dependency under s 57(1)(e) is merely a gateway for the court to consider whether there are factors that warrant the making of an application for provision by a grandchild out of his or her grandparent’s estate, and if so, whether provision ought to be ordered.