If you have been left out of a Will, given a smaller provision than expected, or did not receive any inheritance due to the rules of intestacy, you may be able to bring what is known as a family provision claim. The basis of a family provision claim is that the deceased person did not adequately provide for a person, to whom they owed a moral obligation to make proper provision for.
The South Australian Supreme Court has recently handed down a decision in Karbowiak & Ors v Mitolo & Anor [2023] SASC 168 which considers this type of claim, brough by a sibling of the deceased.
Can siblings apply for a family provision claim?
“Eligible persons” may apply to the Court for a provision order, though the criteria for eligible persons differs between each State and Territory. In certain jurisdictions, siblings fall into a distinct category of eligible persons. For example, under s6(j) of the Inheritance (Family Provision) Act 1972 (SA), a brother or sister of the deceased may be eligible where they can prove that they “cared for, or contributed to the maintenance of” the deceased person. In other states of territories, siblings may be able to rely on other categories of eligible persons, such as where they had a ‘close personal relationship’ at the time of the deceased’s death (s75(f) of the Succession Act 2006 (NSW)), were a member of the same household as the deceased (s90 of the Administration and Probate Act 1958 (Vic)), or were dependant on the deceased prior to their death (s41(1) of the Succession Act 1981 (QLD)).
What does the court consider in a family provision claim?
If a person is considered eligible to make a family provision claim, they must then prove the deceased had a moral obligation to provide for them, and that adequate and proper provision has not been made. This is a discretionary matter decided by the Court, and can take into consideration various elements including the nature of the relationship, the value of the estate, the deceased’s testamentary intentions, the financial needs of the persons claiming as well as of any competing claims.
Case Study – Karbowiak & Ors v Mitolo & Anor [2023] SASC 168
In the recent case of Karbowiak & Ors v Mitolo & Anor [2023] SASC 168, the South Australian Supreme Court considered an application for provision from the estate, where the estate would otherwise, under the rules of intestacy, pass entirely to the deceased’s mother. Maurizio Mimmo Mitolo (the deceased), died without a Will on 18 December 2019. He was survived by his mother, his partner and her son, and his brother. He was not otherwise survived by another spouse or biological child. The deceased’s partner and her son brought a claim for provision before the Court, and the deceased’s brother’s then made an application to be joined to the application for an order for provision. This decision considered the order sought by the deceased’s partner and her son to dismiss the deceased’s brother’s claim.
In its decision, the Court considered the eligibility of the brother to claim against the deceased’s estate, whether the deceased had a moral duty to provide for the brother, and if the brother had demonstrated his need for provision. In order for a sibling to make a claim in South Australia, they must be able to prove that they cared for, or contributed to the maintenance of the deceased, beyond that ‘ordinarily expected in the relationship between two caring siblings’. Ultimately, the Court dismissed the application by the brother to be joined to the family provision claim, finding that he did not prove the existence of a moral duty on the deceased to provide for him, and did not demonstrate a relevant need for provision.
However, the Court stated that, as a person eligible under s6(j) of the Inheritance (Family Provision) Act 1972, the brother could renew his application at a later time should he have proof of the above missing elements.
How can we help?
At Chamberlains, our team of estates lawyers are familiar with the relevant law and experienced in conducting these cases and we invite you to engage our expertise to give you the best opportunity for a successful outcome.
*This article was prepared with the assistance of Monica Hoswell.
If you have any questions or concerns please contact our Private Wealth Director Ashleigh Blewitt on 02 6188 3600