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    Who has a claim on an Estate?

    2/09/19 4:33 PM

    The law tells us that to have a claim on an Estate you must:

    "You must be an Eligible Applicant, and

    The Court must be satisfied that the deceased has not made “adequate provision for the proper maintenance…. or advancement in life of the person in whose favour the order is to be made”

    Who is an Eligible Applicant?

    Section 57(1) of the Succession Act 2006 (“the Act”) identifies Eligible Applicants to be:

    1. The spouse (including a spouse who is in a de facto relationship) of the deceased at the time of the deceased person’s death;
    2. A child of the deceased person;
    3. A former spouse of the deceased person;
    4. A person who was at any particular time wholly or partly dependent on the deceased person, and who is (i) a grandchild of the deceased person or (ii) a member of the household of which the deceased person was a member e.g. in some circumstances a foster child;
    5. A person with whom the deceased person was in a close personal relationship at the time of the death of the deceased.

    Often people assume that only a spouse can be an Eligible Applicant and make a claim on an Estate. However the law upholds de facto relationships when it comes to Estates. 

    How the law sees a de facto relationship

    A de facto relationship is defined in section 21C of the Interpretation Act 1987. A person is in a "de facto relationship" with another person if:

    (a) they have a relationship as a couple and are living together, and

    (b) they are not married to one another or related by family.

    de facto relationship can exist even if one of the persons is legally married to someone else or in a registered relationship or interstate registered relationship with someone else.

    For a de facto partner to make a claim, all the circumstances of the relationship are to be taken into account, including any of the following matters:

    1. the duration of the relationship,
    2. the nature and extent of their common residence,
    3. whether a sexual relationship exists,
    4. the degree of financial dependence or interdependence, and any arrangements for financial support, between them,
    5. the ownership, use and acquisition of property,
    6. the degree of mutual commitment to a shared life,
    7. the care and support of children,
    8. the performance of household duties,
    9. the reputation and public aspects of the relationship.

    How the law sees children

    A reference in a Will to a child of a deceased person includes the following relationships:

    1. a child born as a result of sexual relations between the parties to the relationship,
    2. a child adopted by both parties,
    3. in the case of a de facto relationship between a man and a woman, a child of the woman of whom the man is the father or of whom the man is presumed, by virtue of the Status of Children Act 1996, to be the father (except where the presumption is rebutted),
    4. in the case of a de facto relationship between 2 women, a child where both of those women are presumed to be parents as defined by the Status of Children Act 1996,
    5. a child where both parties have had long-term parental responsibility (as defined by the  Children and Young Persons (Care and Protection) Act 1998 ).

    If you have questions about if you have a claim to an Estate, please contact Andrew Frank at afrank@franklaw.com.au. 

    This is not legal advice. 

    Andrew Frank

    Written by Andrew Frank