*The contents in this blog relates to legislation in New South Wales.

Often clients ask “Why have a Will if someone who is excluded can make a claim?”

Whilst you cannot prevent someone making a claim against your Estate, it does not mean that the claim will be successful. The Court will not just “override” the provisions in the Will. The person making the claim must be an “eligible person”, must have financial need and must prove why they should receive some benefit from the Estate.

The case below illustrates that family provision claims are not always successful. There are many factors which are taken into consideration by a Court when determining whether provision should be made for someone excluded from a Will including the relationship with the deceased, the size of the estate and the beneficiaries who are named in the deceased’s Will.

In the case of Cooper v Atkin [2021] NSWCA 82 the Appellant was an adult step-child of the deceased and sought leave to appeal a decision of the primary judge that she receive no provision from her step-father’s estate on the basis that she had engaged in disentitling conduct.

The adult step child lived with her mother and step-father when she was in her 20’s before leaving to go overseas. Her mother died in 2015 and her mother’s estate, with the exception of a belt, was left to her mother’s husband (the step father). The adult step child did not make a claim against her mother’s s estate.

The deceased in his Will gave 40% of his estate to each of his 2 adult children, 10% to his granddaughter and 10% to be divided equally between his surviving grandsons who attain the age of 18 years. No provision was made for the adult step-child.

The net value of the Estate at the time of the hearing was $92,042.

The adult step child was an “eligible person” to make a claim as she was a partly dependent member of the deceased’s household (albeit for a short period of time).

In order for an adult step-child to be able to make a family provision claim there must also be factors which warrant the making of the application.

The primary judge found that it was clear from the evidence that the adult step child did not have a close relationship with the deceased. Police records revealed there was “continuing conflict between the deceased and his step-daughter”.

In the case it was stated that “claims for a family provision order present particular difficulties where the estate is so small and where there are several competing claims upon the bounty of the deceased. Any provision made by the Court in favour of an applicant must, in this class of case, be made at the expense of the beneficiary who has had to defend the claims and who is the chosen object of the deceased’s bounty.

Furthermore, even a finding that Kristi was partially dependent on the deceased does not itself give rise to a statutory obligation to make provision for her. The question whether there are factors which warrant the making of the application is different to the question of whether she was, at any particular time, wholly or partly dependent upon the deceased, and also different from the further question which arises under s 59(1)(c) of the Act whether adequate provision for her proper maintenance or advancement in life has not been made by the deceased’s will: Page v Page [2017] NSWCA 141 at [38].

The Court is required to make, and I have made, an assessment of Kristi’s financial position, the size and nature of the deceased’s estate, the relationship between Kristi and the deceased, and the competing claim of the beneficiaries, two of whom are the deceased’s children, and the others who are grandchildren, who are the chosen objects of his bounty, and the circumstances and needs of both Kristi and each of the beneficiaries so far as they are known: …. I have also taken into account that the deceased made a previous Will, in 2012, in which Kristi was one of the substitute beneficiaries in the event of Diane having predeceased the deceased.

Having considered those matters, Kristi has not satisfied the Court that adequate provision for her proper maintenance, education or advancement in life has not been made by the Will of the deceased. Importantly, this is not a case where there was a close relationship, that is one which might be properly described as parent and child, or where she was brought up as a permanent member of the deceased’s family, or where she was ever a full-time member, as a child of the deceased’s family. The evidence does not suggest that she was supported by the deceased, to any significant extent, educationally, or emotionally. On reviewing, particularly, the medical, evidence, that she was the daughter of his wife, led the deceased to simply acquiesce to Kristi’s presence in their home, for those relevant periods.

Even if I am wrong in that conclusion, I would not, as a matter of discretion, make an order for provision out of the deceased’s estate. In this regard, I have had regard to, amongst other things, the tiny value of the deceased’s estate, the relationship between Kristi and the deceased, which, for many years prior to his death was virtually non-existent, as well as the relationship between the deceased, and his own children, each of whom has a significant legitimate claim upon the deceased’s bounty. The deceased’s grandchildren are the chosen objects of the deceased’s bounty and their claims, as such, cannot be disregarded.”

On appeal, it was found that “The key findings of the primary judge were that this is not a case where there was a close relationship between the applicant and the deceased that “might be properly described as parent and child”. The primary judge found, correctly, that the applicant was not brought up as a permanent member of the deceased’s family. The applicant was never a full-time member as a child of the deceased’s family. The primary judge found that the evidence does not suggest that the applicant was supported by the deceased, to any significant extent, educationally, or emotionally. The primary judge found that the deceased simply acquiesced to the applicant’s presence in the matrimonial home, for a few relatively brief periods.”

The adult step child asserted that the primary judge did not make an order for provision in her favour become of disentitling conduct, however, the Court of Appeal found that the assertion was not correct.

Therefore, the adult step child’s claim was dismissed and she did not receive any provision out of the estate.