Introduction
When it comes to wills and estates, ensuring fairness and providing for loved ones is a paramount concern for many individuals. Family provision laws serve as a vital mechanism to safeguard the interests of eligible family members who may not have been adequately provided for in a deceased’s will.
Recent developments in the New South Wales Supreme Court, particularly the case of Sheen v Hesan [2023] NSWSC 468, shed light on the significance of eligibility and the determination of adequate provision in such claims.
What is Family Provision?
Family provision, also known as testamentary provision, is a legal principle that grants certain eligible family members and dependents the right to make a claim on a deceased’s estate if they believe they have not been adequately provided for in the will.
The purpose of the family provision is to ensure that individuals who have a legitimate claim on the deceased’s estate are not left in a position of financial hardship or need. This legal framework strives to strike a balance between the autonomy of the testator (the person making the will) and the obligation to provide for their dependents.
The Nature of Family Provision Claims
A family provision claim asserts that the deceased had a responsibility to provide proper and adequate support for the claimant, which includes provisions for their maintenance, education, or general welfare. Such claims are typically brought forth when the claimant receives nothing under the will or a smaller provision than expected.
Eligible Applicants
Family provision laws vary by jurisdiction, but typically, eligible applicants may include:
- Spouses and De Facto Partners: This category encompasses both legally married spouses and de facto partners who were in a committed relationship with the deceased at the time of their passing.
- Children: This includes biological, adopted, or stepchildren of the deceased.
- Former Spouses or Dependent Former Partners: In some jurisdictions, former spouses or partners who were financially dependent on the deceased at the time of separation may be eligible to make a claim.
- Other Dependents: This can extend to individuals who were financially dependent on the deceased, such as elderly parents, disabled family members, or other individuals who were supported by the deceased.
Grounds for Making a Claim
To successfully make a family provision claim, applicants must demonstrate that they have not been adequately provided for in the deceased’s will. They must also show that they have a legitimate need for financial support. This could be due to reasons such as:
- Inadequate Provision: The applicant must prove that the provision made for them in the will is insufficient for their proper maintenance, education, or general welfare.
- Exclusion or Disinheritance: If the testator deliberately excluded an eligible family member without reasonable cause, this may warrant a family provision claim.
- Changed Circumstances: Applicants can show that their financial situation has changed since the making of the will, warranting an adjustment in the provision.
The Court’s Role
When a family provision claim is lodged, the court will consider various factors, including the financial needs and resources of the applicant, the size and nature of the deceased’s estate, the relationship between the applicant and the deceased, and any contributions made by the applicant towards the deceased’s estate.
Sheen v Hesan [2023] NSWSC 468
The recent case of Sheen v Hesan [2023] NSWSC 468 heard in the New South Wales Supreme Court centered around Doe Hwa Sheen, known as “Winnie,” and her claim for provision from the estate of the late Mohammad Bashir Zaheer, who died intestate. The court assessed the nature of Winnie’s relationship with the deceased, ultimately recognizing her as an eligible person due to their shared household and partial dependency. While the court did not determine a de-facto relationship, it ruled that adequate provision had not been made, awarding Winnie 15% of the estate, with the remainder divided among the deceased’s eight siblings.
Conclusion
Family provision laws play a vital role in upholding fairness and justice within the legal framework of wills and estates. The Sheen v Hesan case emphasizes the importance of eligibility and the determination of adequate provision in such claims, underlining the need for a nuanced understanding of the legal framework surrounding wills and estates.
Speak to CFS Legal qualified lawyers in confidence for the Wills and Estate matter. We will navigate this process effectively and achieve the best possible outcome for you. Email: info@cfslegal.com.au.