The Succession Act permits an eligible person, who has been left out of a will (or not adequately provided for), to make a claim for provision. This is commonly known as contesting a will. In the case of Christina Elizabeth Hay v Sarah Renwick [2016] NSWSC 1048 the Supreme Court permitted the de facto of a deceased to successfully challenge a will allowing her a legacy of $1.5 million.
In the above case the sister of the deceased, who received about $2.4 million under a will from her late brother, contested the entitlement of the deceased's de facto to receive provision out estate in circumstance where she was left with nothing. The relationship between the deceased and the plaintiff was a fairly short one lasting about 3 years.
The Court explained that there is essentially a two stage approach, in accordance with what was said in Singer v Bergouse (No 2) (1994) 181 CLR 201 when it comes to family provision applications. Firstly, you need to consider if the will has not adequately provided for someone, and if so then the Court must decide what provision should be made. The court then went on to say: "Nonetheless, in such an application, the Court must consider first, whether the plaintiff is an eligible person; secondly, whether the plaintiff has been left with inadequate provision for his or her proper maintenance, education, and advancement in life; and thirdly, if so, what, if any, further provision ought to be made out of the estate for those purposes".
It was found that as a de facto the plaintiff was clearly eligible. It then determined that she had net assets of about $475k, had a close and loving relationship with the deceased and that the will did not adequately provide for her (a matter that was conceded). The question then became what provision should be made and found that she should receive a legacy of $1.5m
Contact our Litigation Lawyers in Sydney to see how we can help you with a family provision case.
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