What are Dependent Support Claims in Contested Wills in NSW?
Dependant Support Claims in Contested Wills, are claims made against a deceased Estate by dependents of the deceased. They are generally made by adults -being either adult children, stepchildren or grandchildren of the deceased under the family provision claim section of the Succession Act.
Dependent Support Claims are claims that the deceased failed to make adequate provision for, a dependent’s proper maintenance, education or advancement in life.
It is taken as a matter of course that parents will make adequate provision for the proper maintenance, education or advancement in life of children under the age of eighteen years, or children who are suffering from a disability. Whether a parent has the same obligation in relation to adult children is a question that has been argued in the Courts over many years, particularly in circumstances where the parent and the adult child have been estranged.
In the New South Wales Court decision of Wheat v Wisbey [2013] NSWSC 537 the Court considered the factors that were to be taken into account when determining, whether the deceased had an obligation to provide for the proper maintenance, education and advancement in life of his adult children.
These factors included the nature and duration of the relationship between the deceased and the adult child, the nature of any obligations owed by the deceased to the adult child, the age of the child as well as the financial resources and financial needs of the adult child.
The Court set out some useful principles to remember when determining family provision claims by adult children including:
– The relationship between the parent and the child changes when the child leaves home. However, a child does not cease to be a natural recipient of parental ties, affection or support as the bonds of childhood are relaxed.
– Ordinarily, the community expects parents to raise and educate their children to the very best of their ability while they remain children; probably to assist them with a tertiary education where that is feasible and where funds allow, provide them with a start in life. The community does not expect a parent, in ordinary circumstances, to provide an unencumbered house or set them up in a position to acquire an unencumbered house.
– Generally, the community does not expect a parent to look after their children for the rest of the child’s life and into retirement. But when a child, even an adult child, falls on hard times the community may expect a parent to provide a buffer against contingencies.
Dependent Support claims are becoming more prevalent in the Courts. If you believe you have not been adequately provided for in your parent’s Estate or you wish to make sure your Estate can defend a Dependent Support Claim then you should seek expert legal advice.
If you need advice on making or defending a Dependent Support Claim or preparing your Estate to withstand a Dependent Support Claim, then you need to seek legal advice.
Graeme Heckenberg is an expert lawyer and has been practising in this area of law for over 25 years.
