In New South Wales, the Succession Act 2006 (NSW) (‘the Act’) sets out the categories of eligible persons who can apply to the Supreme Court of NSW to make a claim in relation to the estate of a deceased person. Under the Act, children of the deceased, including adult children, are eligible persons to make such a claim, but this does not necessarily mean that merely because they are eligible to make a claim, that they will be awarded money from the estate.
Firstly, the claim must be made within 12 months from the date of death of the deceased, unless there is sufficient cause which warrants the Court making an order for the application to be made out of time.
Secondly, the adult child (like other eligible persons) must satisfy a threshold under section 59 of the Act, that is, the court will need to consider whether at the time the court is hearing the application, did the deceased person provide the adult child with adequate provision for their proper maintenance, education or advancement in life?
The third element, in assessing whether the circumstances of the case warrant the making of an order for provision for an adult child and the nature of such an order, is that the court may consider the factors set out in section 60(2) of the Act. These factors include:
- The relationship between the adult child and deceased person including the nature and duration of the relationship – for example, the Court may look at whether the adult child and deceased person shared a close and loving relationship, or whether there was a period of estrangement between the adult child and deceased, etc;
- The nature and extent of any obligations or responsibilities owed by the deceased to the adult child– for example, whether the adult child was dependent on the deceased in any way;
- The size of the deceased’s estate – for example, if it is a large estate and there are few beneficiaries, there may be more money in the asset pool to distribute money to an adult child who has not been provided with adequate provision; conversely if it is a small estate, there may be very little to distribute which may be a factor against making an order in favour of the adult child;
- The financial resources (including earning capacity), and financial needs, present and future, of the adult child and any other person who has made a family provision claim, and any beneficiaries of the estate – the Court will have regard to matters such as; whether the adult child has adequate financial resources; whether there are other persons who have made a claim or other beneficiaries who have an entitlement to the estate and the extent of their claim/entitlement; whether the adult child is likely to need additional financial assistance due to circumstances such as ill health, etc;
- The age of the adult child – for example, this may be relevant in the context of the adult child’s future financial resources and needs;
- Any provision made during the deceased’s lifetime – as an example, if the deceased provided the adult child with financial assistance to purchase their first home;
- The testamentary intentions of the deceased – that is, how the deceased intended to distribute their estate under their will (the deceased may have had a particular reason for not providing any or only some provision to an adult child under their will – this is not determinative of a claim but may be taken into account);
- Any contributions (financial or otherwise) made by the adult child to the acquisition, conversion or improvement of the estate; or the welfare of the deceased;
- The character and conduct of the adult person before and after the death of the deceased person.
The circumstances of each particular case will be taken into account in a court making a determination as to whether or not to make an order for provision out of the estate of a deceased person to an adult child.
For more information, contact Rockliffs Lawyers on (02) 9299 4912.