Case Studies

Family Provision Claims on an Estate

The Succession Act 2006 provides that the Court may on application make a Family Provision Order in relation to the estate of a deceased person if the Court is satisfied that provision out of the estate of the deceased person ought to have been made for “the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the Order is made.”

 An “eligible person” is determined having regard to all the circumstances of the case.

An application for a Family Provision Order may be made not later than 12 months after the date of the death of the deceased person unless the Court otherwise orders.

The matters that the Court may consider include:-

a) Any family or other relationship between the applicant and the deceased person including the nature and duration of the relationship;

b) The nature and extent of obligations or responsibility owed by the deceased person to the applicant;

c) The nature and extent of the deceased person’s estate;

d) The financial resources and financial needs both present and future of the applicant;

e) If the applicant is cohabiting with another person – the financial circumstances of the other person;

f) Any physical, intellectual or mental disability of the applicant;

g) The age of the applicant when the application is being considered;

h) Any contribution made to the deceased’s estate or to the welfare of the deceased person or the deceased person’s family;

i) Any provision made for the applicant by the deceased person, either during the deceased person’s life time or from the deceased person’s estate;

j) Any evidence of the testamentary intentions of the deceased person including evidence of statements made by the deceased person;

k) Whether the applicant was being maintained by the deceased person before her death;

l) Whether any other person is liable to support the applicant;

m) The character and conduct of the applicant before and after the death of the deceased person;

n) Any other matter the Court considers relevant.

 

Early action and advice should be sought bearing in mind the time limit that applies.

 

We have considerable experience in managing matters before the Supreme Court Protective Division.

MATTERS ARISING UNDER THE NSW TRUSTEE AND GUARDIAN 2009 or GUARDIANSHIP ACT 1987

In circumstances where a person is incapable of managing his or her affairs, orders can be sought from the Protective Division of the Supreme Court for the appointment of an appropriate financial manager. A proposed manager may be the New South Wales Trustee and Guardian or a licensed trustee company.  Otherwise, and subject to a consenting person being appropriately qualified and presenting evidence as to fitness as a proposed manager, he or she may be approved by the court to undertake that role.

Affidavit evidence of at least 2 medical practitioners or other suitable expert must be provided to the Supreme Court to satisfy the court that a person is incapable of managing his or her affairs. On the presentation of satisfactory evidence, the Court may–

(a) declare that the person is incapable of managing his or her affairs and order that the estate of the person be subject to management under this Act, and

(b) by order appoint a suitable person as manager of the estate of the person or commit the management of the estate of the person to the NSW Trustee.

Changing or substituting a financial manager or trustee

In circumstances where relations with the appointed financial manager or trustee breaks down the Supreme Court may set aside or vary any order for the appointment of a manager or guardian or for the allowance of maintenance.