Can a parent successfully claim against an estate?

A family provision claim occurs where an eligible person is contesting a Will on the basis that they consider what has been provided for them in the deceased’s Will is not adequate and proper in the circumstances. There are limitations on these claims, such as who can apply and within what timeframe – this differs depending on the law of the State of Territory where the claim is considered.

Who can apply?

One of the limitations on family provision claims is that the applicant must be considered an ‘eligible person’. Determining who is eligible will depend on the law of the State of Territory where the claim is considered. Generally, eligible people include partners, children, and dependents. For example, the eligible persons to bring a claim can be found in:

• Sections 57 and 59 of the Succession Act 2006 for NSW
• Sections 7 and 8 of the Family Provision Act 1969 for the ACT
• Section 91 of the Administration and Probate Act 1958 for Victoria
• Section 41 of the Succession Act 1981 for Queensland

After eligibility is established, it is considered whether or not adequate provision for proper maintenance, education, or advancement in life was made for the applicant.

What does the Court consider?

In a family provision claim, the Court will consider various factors to establish if the deceased had a moral obligation to provide for the person, and also if the applicant has been left without adequate provision for their proper maintenance and support. This commonly includes:

• The relationship between the applicant and the deceased
• The nature and extent of obligations or responsibilities owed to the applicant
• The nature and extent of the estate
• The financial circumstances of the applicant and any other beneficiaries
• The needs of the applicant
• The adequacy of provision made in the Will for the applicant
• The testamentary intentions of the deceased

Case Study – In the Matter of the Estate of the Late Sofia Fraiia [2023] QDC 218

In the case of the Estate of the Late Sofia Fraiia, the deceased died at age 44 and was survived by her parents and a close friend she had appointed as executor in her Will. Her mother made an application to the Court requesting further provision from the Estate, as a dependent of her daughter, having relied on her daughter for assistance to attend medical appointments, prepare meals and provide her a place to live. Having found the mother to be eligible to make a claim on the estate, the Court then considered the provision made for the mother. In doing so, the Court considered:

• the modest nature of the estate;
• the relationship between the applicant and the deceased;
• the needs and circumstances of the applicant (who had several health concerns); and
• the needs and circumstances of the other beneficiary.

The Court ultimately placed considerable weight upon compromise of the parties reflected in a Deed of Settlement. The Court ultimately found that adequate provision had not been made and made an order giving provision. This order followed the draft order prepared by the parties and took the form of $196,000.00 (inclusive of costs) given to the mother, in lieu of her original entitlement to $100,000.00 from the deceased’s superannuation.

If you feel you have not been adequately provided for in a Will, contact the Private Wealth Team at Chamberlains.

*This article was prepared with the assistance of Monica Hoswell.