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Factors Warranting in Family Provision Claims 🛑

In our latest update, Morris Succession Lawyers Principal Solicitor, Richard Morris discusses the additional hurdle that certain classes of claimants in family provision claims must overcome to be successful in a claim.

In particular, stepchildren who fall within the category of former members of the household of the Deceased person, who were also at some point dependent (either wholly or partially) on the Deceased.

In relation to what constitutes dependency, Meagher JA gave some guidance in the leading case of Tobin v Ezekiel, "in this context means actual reliance on someone else for the total or partial satisfaction of some need. It is not limited to purely financial or material matters", and it "may exist irrespective of whether the dependent person is financially or physically able to support himself or herself".

Usefully, the Act does not specify the "factors which warrant the making of the application". In Re Fulop, M McLelland J placed importance on a claimant being young (about 4 years) at the time he became a child of the family unit comprising the deceased, and also that he remained so until he left home at 18 and thereafter the family relationship was recognised on all sides as continuing as if he were a child of the deceased.

In Graziani v Graziani, Cohen J, in dealing with an application by stepchildren, Cohen J said "it is necessary to look not only at the nature of the relationship, but the quality of it. The Court should consider the circumstances in which it arose and to some extent it must also look at the weight of the application which might lead to the finding that the plaintiff has been left without adequate provision for his or her proper maintenance, education or advancement in life. The circumstances must vary in every case and it would be foolish to seek to limit them in any way. Where, however, the plaintiff has established a position as a stepchild or perhaps a foster-child then there would be a number of relevant matters in my opinion which the Court should consider in deciding whether factors exist. These include the closeness of the relationship, that is whether it was one which might be properly described as parent and child, whether the plaintiff was brought up as a permanent member of the family, what was the age of the plaintiff when he or she became a member of that family, and the extent to which the plaintiff was supported by the deceased, whether it be financially, educationally or emotionally."

As one can appreciate, human relationships come in all forms, and what may amount to factors warranting the making of a successful claim can vary. The particular circumstances of each case must be examined closely to determine the prospects.

If you require any advice on a potential family provision claim, where from a defensive or offensive perspective, then please reach out to us on (02) 6584 1185 or [email protected]