(02) 9525 8688

(02) 9525 8688

Can an eligible person make an unwelcome claim over your estate? Wills and the Family Provision Act 1982 (NSW)

Wed, 02/20/2013 - 12:57 -- alexr

Two decisions in the Supreme Court of New South Wales, have highlighted not only the importance of having a clear and concise Will, but have also brought more clarity to the application of the Family Provision Act 1982 (NSW) (Act) in certain areas.    

In the case of Mouglalis, 3 children of a man said to be their sperm donor father were awarded a substantial share in his estate when he passed away without leaving a Will.  In this landmark decision, it was found that although the donor father had never provided any financial support or otherwise to the children during his lifetime, the fact that the children had became known to the donor father and that some type of relationship was formed was seen by the Court as being enough to justify a share of his estate.

As a result of this decision, it now appears that once a donor child becomes even known to the donor parent, conceivably the child or children may bring a claim on the estate where the donor parent dies intestate.  In fact, it is possible that even in cases where the donor parent does have a Will, the donor child or children could still bring a claim for a share of the estate under the Act in the absence of safeguards such as a considered person clause.

In the second case of Charlesworth v Herring, the application of the Act was essentially the focal point of the judgment. In that case, Mr Charlesworth, a 44 year old mentally handicapped man with the intellectual capacity of a 4 year old, brought a claim for the estate of his deceased father who had walked out on the family 36 years earlier and had not been in contact with Mr Charlesworth since that time.

As an ‘eligible person’ under the Act (being a child of the deceased), Mr Charlesworth contested his father's Will, which left the entire estate to the daughter of his subsequent partner, for whom he had cared for and treated like his own daughter for many years.

In clarifying the principles surrounding the claims of eligible persons under the Act, the Court upheld the Will of the father (and dismissed the son’s claim entirely) based on the rationale that the father owed the greater moral duty to his ‘surrogate’ family and not his biological son.  The decision turned on the fact that the father had not been in contact with the son for some decades and that the son had failed to demonstrate that he had been left by the deceased without adequate provision for proper maintenance, education and advancement in life.

For further enquiries about your estate planning needs generally, or to discuss the potential effect of the Act on your affairs, please contact Greg Dickson or email greg@wmdlaw.com.au.