Pursuant to s 57(1)(e) of the Succession Act, persons who were Members of the Deceased Household and were Dependant on the Deceased are eligible to make a Family Provision Claim provided that there are Factors which Warrant the making of the Application.

Olivera, the Deceased's Mistress, and James, Olivera's son from a previous relationship, made a Family Provision Application on the grounds that they were Members of the Deceased's Household.

Facts

The will of Dr Borun, the deceased, divided his estate between his wife and his son and left a small legacy to his friend, Meiada Saab. No provision was made for the deceased's daughter or his mistress, Olivera, and her son James.

These proceedings concerned the family provision claims brought by Olivera and James. The relevant facts were as follows: Olivera met the deceased in Serbia, and they commenced a sexual relationship. At this point, the deceased was married to Maria Bourn to whom he remained married until his death. After the commencement of their relationship, the deceased assisted Olivera, and later her son, to immigrate to Australia and set her up as his mistress in a flat owned by him. The deceased supported Olivera, providing her with accommodation and income from roughly 1982-2008, despite their sexual relationship ending in 1998. 

Were Olivera and James Eligible Persons?

Both Olivera and James were found to be eligible persons given the following factors:

  1. Olivera was a member of the same household as the deceased for a time. It was not deemed necessary for her to show that she had been a member of the deceased's household for the entirety of the relationship. Although the deceased was clearly a member of his own family household at the matrimonial home, it was noted that it was possible for someone to be a member of two households. There was a household consisting of Olivera and James, and given the deceased’s regular attendance and overnight stays at the flat occupied by Olivera and James, the deceased was a member of Olivera and James’s household. 
  2. Olivera was clearly dependent on the deceased as he provided her with accommodation and income for an extended period. James' dependancy was questionable, as much of the support provided by the deceased to James was through his mother. Nonetheless, at two points of time – the first when the then 12-year-old James stayed in Sydney while Olivera went overseas, and the second when the then 16-year-old James travelled overseas – the deceased provided direct financial support to James. Thus, James was considered to have been dependent. 
  3. There were factors warranting the making of both Olivera’s & James’s application, namely the extent of Olivera’s dependency on him, that the deceased had brought them out to Australia, and there was a familial nature of the relationship. These factors meant that they would be regarded as natural beneficiaries of the deceased’s estate. 

Outcome

The court concluded that Olivera and James had been left without adequate provision for their proper maintenance, education and advancement in life. The court ordered that Olivera be given ownership of the flat she had resided in during the relationship and that both Olivera and James receive legacies of $100,000 and $75,000 respectively.

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.