A child of the deceased person is an Eligible Person for the purposes of the Succession Act. This eligibility does not mean that a claim will be successful, but enables the husband or wife to bring the claim in the first instance.
A child is a child of blood or an adopted child, but does not include step-children.
I am the deceased's son or daughter- will I be successful?
A Court will only make an order for provision, or further provision, from an estate of a deceased person if it is satisfied that the provision made in the Will for the son or daughter was inadequate. If so, the Court will proceed to determine whether an order should be made to disturb the terms of the Will, and to what extent.
any family relationship, including the nature and duration of the relationship.
the nature and value of the estate.
the financial resources and needs of all interested parties.
any physical, intellectual or mental disability of all interested parties.
the age of the child.
any contribution made to the estate or welfare of the deceased.
any provision made for the child by the deceased before or after death.
whether the child was being maintained, either wholly or partly, by the deceased person before the deceased person’s death.
whether any other person is liable to support the child.
All cases have their own particular circumstances, and each of the above factors plays a part in determining whether a claim is ultimately successful.
The strong claim of a child, and the importance of individual circumstances was demonstrated in 2012 by the Supreme Court of NSW Court of Appeal in the case of Andrew v Andrew. In Andrew the Court of Appeal held a bequeath of $10,000 to a child estranged from her mother for 35 years as inadequate, instead increasing this amount by $50,000 payable by the remaining beneficiary siblings.
This is not to say that all children should automatically receive an entitlement under an estate, but demonstrates that a child can successfully challenge an estate even following a 35 year self-imposed estrangement.
While a general overview has been provided above there are a number of subtleties in this area of law and it is important that you seek advice from the lawyers in the Contested Estates Division because they regularly appear before the Court in these types of applications.
If you are a child of a deceased person and wish to find out whether you have a case to challenge the Will and/or seek provision from the estate, then receive a no obligation assessment of your personal circumstances by an experienced estates lawyer, at no cost, by contacting us or commence our online assessment by clicking here.