If you are a grandchild who was wholly or partly dependent on the deceased at any time, although never a member of the same household as the deceased, you may possibly be an applicant for a family provision claim.
What follows is an overview for a grandchild to successfully claim against a deceased estate for family provisions.
Establishing a Claim
To be successful you must establish that you are eligible to apply for a family provision claim and have had financial dependency on the deceased.
Eligibility of Grandchildren
Factors relevant to determine the eligibility of a grandchild include the extent to which the deceased assumed responsibility for your maintenance, education or advancement in life, the basis upon which the deceased assumed that responsibility, and the length of time for which the deceased had discharged that responsibility.
As a grandchild applicant, you must demonstrate that the deceased was making a contribution in cash or in kind towards you and that the deceased was doing so otherwise than for full valuable consideration.
It is difficult to say anything more precise than this, for each application should be considered in respect to its own special circumstances.
The fact that a grandchild need not have been at any time a member of the deceased’s household demonstrates that grandchildren may have a claim for provision merely because of their kinship with the deceased.
Moreover, any disentitling conduct on the part of your parent is irrelevant to an application for provision by a grandchild.
Financial Dependency – Adequate Maintenance, Education and Advancement
Adequate provision for your maintenance, education and advancement of your claim must be demonstrated to not have been met by the Will of the deceased, beyond mere emotional dependence.
You must demonstrate to have been either in total or partial financial dependence upon the deceased directly. Dependence necessitates a financial contribution with a settled basis or arrangement which extends beyond essentials for life, to a mode of life set by the deceased who assumed a direct responsibility to maintain and support you. You should be aware that what is deemed adequate will be comprised of the condition of the specific case such as the strength of competing claims and the wealth of the deceased.
Discretions of the Court
The Court has the discretion to accept a family provision claim.
As such the court may consider:
- The deceased obligations and responsibilities towards you as well as other applicants and those entitled under the Will or Intestacy,
- A combination of factors including relationship, the deceased’s means, your needs and the means of the several claimants and the relative urgency of the various claims upon the deceased estate,
- The nature and size of the estate,
- Your character and conduct as an applicant or any other persons before and after the death of the deceased, and
- Any other relevant matter that the court may deem fit.
Recent Family Provision Orders for Grandchildren
In Re Filomena Rodi, dec’d [2016] NSWSC 1696 (‘Rodi’) an application was made by a grandson for family provision from the estate of his late grandmother with whom he’d lived for the last decade of her life, providing companionship that aided her continued occupation of her home until her demise. The Court considered that the duration of residency placed the claimant in the position of a surrogate son or gave the flavour of a parental relationship. Following the grandmother’s death the grandson married, had a child, and separated. The Court considered that these circumstances meant that the grandson ought to have provision from the grandmother’s estate and awarded $200,000 from an estate of about $1.2 million.
In Application by Craig-Bridges. (The Estate of Ella Minnie Lillian Bush; The Estate of Ella Minnie Lillian Bush v NSW Trustee & Guardian [2016] NSWSC 1611), a grandchild who had an extensive relationship with the deceased, such that ‘she was, in substance, a de facto child’ obtained provision equal to one fifth of the estate.
Family Lawyers Sydney at Pavuk Legal can assist you with sound advice in relation to establishing Family Provision claims, including succession; estate planning and property disputes.
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