If you have been left out of a Will, or have been given a smaller provision than expected, you may be able to bring what is known as a family provision claim. The basis for this claim is that the deceased did not adequately provide for a person, for whom they had a moral obligation to make proper provision.
The New South Wales Supreme Court has recently handed down a decision in Papantoniou v Foundouradakis [2023] NSWSC 1374 which considers this type of claim, brough by a grandchild of the deceased.
What is a family provision claim?
A Court will consider making a family provision order where an eligible person is contesting a Will on the basis that what has been provided for them in the deceased’s Will (or lack thereof) is not adequate and proper in the circumstances. That is, the Will does not adequately provide for their maintenance, education, or advancement in life.
Eligibility and Adequate Provision
Only “eligible persons” may apply to the Court for these types of orders. The eligibility criteria differ between the States and Territories. In certain jurisdictions in Australia, grandchildren may fall under a distinct category allowing them to bring a family provision claim. In New South Wales, s57(1)(e)(ii) Succession Act NSW (2006) provides that a grandchild may be eligible where that person “was, at that particular time or at any other time, a member of the household of which the deceased person was a member”.
If a person is considered eligible to make a family provision claim, they must then prove that adequate and proper provision has not been made for them. This is a discretionary matter decided by the Court, and takes into consideration various elements including financial needs of the persons claiming and any competing claims.
Case Study – Papantoniou v Foundouradakis [2023] NSWSC 1374
In the case of Papantoniou v Foundouradakis [2023] NSWSC 1374, Papantonious was a grandchild of the deceased and applied to the court for provision from the deceased’s estate following her death. The deceased’s estate, of which the main asset was her $1.6m house, was left under Will to her three children. However, Papantonious argued that adequate provision was not made for him, having resided with his grandmother for lengthy periods of his life.
In determining this claim, the Court considered several factors, including the plaintiff’s eligibility to apply, and his financial circumstances. The Court awarded Papantonious’ the sum of $70,000 but required these funds be placed into a trust due to his gambling addiction. These funds were to be used to provide for his maintenance, education or advancement in life.
Contact Chamberlains
If you feel you have not been adequately provided for in a Will, contact the Chamberlains Private Wealth Law team who can assist you.
If you have any questions or concerns please contact our Private Wealth Director Ashleigh Blewitt on 02 6188 3600