Who Can Make a Family Provision Claim?

To contest a will under the family provision legislation, you must first establish that you are an eligible person. Under the NSW Succession Act, eligible persons include:

  1. The deceased’s spouse;
  2. The deceased’s de facto partner;
  3. A child of the deceased;
  4. A former spouse of the deceased; 
  5. A grandchild or member of the deceased’s household who was dependant on the deceased; and 
  6. A person who was living in a close personal relationship with the deceased.

RE FULOP: The Two Sets of Classes of Eligible Persons

There are two sets of classes of eligible persons and requirements for establishing eligibility will differ for each set. 

  1. The first set are persons who are considered to be the natural beneficiaries of the deceased’s estate and are therefore automatically eligible to make a family provision claim. That is a deceased’s spouse, de facto partner and children.
  2. The second set are persons who would not ordinarily be the natural beneficiaries and accordingly are required to establish additional factors which give them ‘the status of a person who would be generally regarded as a natural object of testamentary recognition’. This includes former spouses, grandchildren, household members, and those persons living in a close personal relationship with the deceased. 

Pursuant to the Succession Act, persons in the second set are required to show additional factors which ‘warrant the making of the application’.

Establishing Eligibility

The requirements necessary to establish eligibility will depend on which set of classes you fall into. Spouses, de facto partners, and children (including adopted children and foster children) are deemed to be a closed category. This means that applicants in these categories do not have to establish eligibility beyond the fact that they are a spouse, de facto partner or child. 

Persons within the second set, however, are required to prove that they are an eligible person on the basis that there are factors which ‘warrant the making of the application’, which effectively imposes an additional burden. What may be necessary to establish eligibility will depend on the class which is relied upon.

Grandchildren of the Deceased can contest a will provided that they meet the following criteria:

  1. Dependency: a grandchild must be able to show that they were, at one time, wholly or partly dependent on the deceased. Dependency will be established where the grandchild was reliant on the deceased for ‘life’s necessities’, e.g. accommodation. This may occur where the grandparents were responsible for caring for the child because their parents were unable or incapable of looking after them.

  2. Factors Warranting: a grandchild must demonstrate that given the circumstances, there are factors warranting the making of an application. For instance, where the grandchild had a particularly close relationship with their grandparent, closer than that of an ordinary grandchild-grandparent relationship. 

Person in a Close Personal Relationship with the Deceased

To sucessfully claim family provision on the grounds that you were in a close personal relationship you must establish the following. First, that a close personal relationship existed, per section 3(3)-(4) of the Succession Act, this requires the applicant to show that they were living with the deceased, and that either or both parties were providing the other with personal care and domestic support without reward or payment and not as part of an agency or charity. 

Second, factors warranting the family provision application must be identified. This may include any factor which would cause them to be seen as a natural beneficiary of the deceased’s estate.

Member of the Deceased’s Household

A member of the deceased’s household is a person living within the same household as the deceased. For example, a sibling, stepchild, parent, friend or other family member. However, an applicant will not be deemed a ‘member of the deceased’s household’ where they are simply living in the same house i.e., ‘renting a room’ or where the applicant and the deceased had little to do with each other beyond sharing a common living space. 

A person claiming on the basis that they are a member of the deceased's household must establish both dependency and factors warranting. Here the dependency required is real dependency. The applicant must establish that they were dependent on the deceased for accommodation or living expenses i.e., those things necessary in life. Factors which warrant the making of the application may be related to the applicant’s financial dependency or their reliance on the deceased for care because of illness, incapacity, or youth. 

A former spouse of the deceased will only be an eligible person if there are factors which warrant the making of an application. In the case of a former spouse, factors warranting may include: 

  • The property settlement between the deceased and their former spouse, at the time of divorce, was inadequate;
  • The deceased had consistently failed to make child support payments; or
  • The former spouse was solely responsible for raising any children from the marriage and the deceased did not provide appropriate support.

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DISCLAIMER: The information provided above is published for general informational purposes only and is not intended to be nor should it be relied upon as a substitute for legal or other advice.