Under the Succession Act 2006 (NSW), the spouse or children of a deceased person are considered ‘natural objects of testamentary recognition’. They are expressly deemed to be an ‘eligible person’, which means that they can seek a family provision order from the Court on the grounds that the will of the deceased does not adequately provide for their proper maintenance, education or advancement in life.
This does not mean that those who held a different relationship with the deceased cannot seek such an order, however, it can prove to be more difficult. This was recently considered by the NSW Court of Appeal in the matter of Chapple v Wilcox [2014] NSWCA 392. In this case, a will was challenged by the grandchild of the deceased.
The Decision
The deceased left a will in which his whole estate passed to his only child. This was challenged by the deceased’s grandson. In considering this case, the Court noted the distinction between family provision claims made by children and those made by grandchildren. While both groups must establish that they are not properly provided for within a will, grandchildren must also establish that there are additional factors present which would justify the making of an order.
The most significant factor to consider is the level of dependence exhibited by the grandchild in relation to the grandparent. In circumstances where grandchildren have lost their parents at an early age and have subsequently been brought up by a grandparent, this will likely be established. This effectively amounts to the grandparent taking on the role of parent in relation to the claimant.
Another factor to consider is the level of care and affection provided by the grandchild to the grandparent. The presence of these factors will ensure that the making of an order resonates with ‘perceived prevailing community standards of what is right and appropriate’.
In this case, the grandchild had lived and worked on the deceased’s property from 1986 through to 1994. However, since that time the grandchild maintained little contact with the deceased, with contact ceasing in 2004. Accordingly, the Court of Appeal held that an order for provision could not be made.
Implications
The mere fact that a grandchild feels they have been left out of a will does not automatically provide sufficient grounds for a family provision order to be made. The principles applicable to grandchildren apply equally to other persons not considered natural objects of testamentary recognition. These include:
However in any case, whether an order will be made depends on the circumstances of the case. Given this, it is imperative that legal advice be sought when making a family provision claim.
If you have further questions, please contact us at frank@franklaw.com.au.
This is not legal advice.