Family Provision Claims: Can I make a claim on my Aunty or Uncle’s Estate?

Family provision claims: dependency and the extended family – Aunts and Uncles, Nieces and Nephew

The most common form of estate or will challenge is what is known as a family provision claim. Any family provision claim requires the claimant to be eligible – which can be a matter of fact. For example, people who were, at some point, dependant on the deceased can make a claim against the estate in certain circumstances.

The New South Wales Supreme Court has recently handed down a decision in Noble v Durrant [2023] NSWSC 513 which considers one form of this kind of estate dispute, where two adult nieces brought a claim for provision from their deceased aunt’s estate. The relationship of aunt-niece is not one where a party can bring a claim ‘as a right’ and instead requires the court to determine eligibility.

What is a family provision claim?

A family provision claim is an application to the Court that proper and adequate provision has not been made for a person that the deceased, and the deceased had an obligation to make that provision.  Adequate and proper provision includes provision for a persons maintenance, education, or advancement in life. Such a claim is usually brought when the eligible person is given nothing under a will, or given a smaller provision than they expected.

Could I make a claim over my Aunty or Uncles estate?

For an individual considering a claim on their aunt of uncles estates, there are two main questions to consider: eligibility and adequate provision.

Only “eligible persons” may apply to the Court for these types of order. The criteria for eligibility differs between the States and Territories. Typically, a niece or nephew will need to be a dependent under the relevant law, arguing they were wholly or partly dependent on the deceased and a member of their household at the relevant time, usually as children. In NSW, this is found under section 57(1)(e) of the Succession Act 2006 (NSW).

If the claimant is an eligible person, they will then have to prove that adequate and proper provision has not been made in the circumstances, and that there are factors warranting an order for provision. The Court may consider a wide variety of factors to weigh the moral obligation of the deceased to provide for the applicant, including any estrangement between the deceased and the applicant, the applicant’s financial circumstances and future needs, as well as and any competing claims by others on the estate.

Case Study: Noble v Durrant [2023] NSWSC 513

The Supreme Court of NSW recently considered the eligibility of nieces, Charlotte and Carolyn, in their claim over their auntie’s estate in Noble v Durrant. In this case, the two adult nieces lived in the same household as the deceased as children after their mother passed away. The deceased was one of the members of the extended family which cared for Charlotte and Carolyn while they lived with the deceased and their step-grandfather on a family farm.

In this case, the court considered whether there were factors warranting the making of the application and if inadequate provision was made. Neither of the claimant nieces received anything under the will of the deceased.

The Court concluded that both claimants were eligible, in the circumstances. However, the Court dismissed the claim, finding that there was insufficient factors warranting making an order, especially when considering the lack of financial need of Charlotte and Carolyn, and upon examining the relationship between the deceased and the two claimants.

However, it is significant that the Court considered the claimants to be eligible people, leaving other claims made by nieces and nephews open to the Courts consideration.

How can we help?

If you believe you might be eligible, early advice on the prospects of your claim are vital – strict time limits can apply, rendering your claim unable to be brought. If you are administering an estate and are concerned there might be a claim, advice on the nature and level of risk of that claim is highly desirable. 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.