Minor successful in making family provision claim

Date: Jan 30, 2015

In some cases, an estate dispute can be brought before the courts by minors - those under the age of 18. This will often be the result of an insufficient provision to provide for a child's ongoing care and maintenance - making this an important area for individuals to understand.

A recent case before the NSW Supreme Court has demonstrated the conditions under which a family provision claim from a minor can be successful. The case involved the grandson of the deceased making a claim against her estate.

In this case, the grandson had been residing with the deceased prior to her hospitalisation, totaling roughly six years of the grandson's life.

In her will, the deceased left the balance of the estate to be held on trust by the executor for the benefit of the deceased's three children and her grandchildren. If the trust failed, the whole of the balance of the estate was to be divided into ten equal parts of which the plaintiff grandson would receive one part while other parts would be divided amongst the deceased's children.

The plaintiff argued that, given the grandson's position as a dependent of the deceased, and his ongoing need for financial support, he ought to receive a larger share of the estate.

In this case, the Judge agreed, noting that the child was obviously eligible for a share of the estate - given the close personal relationship he had with the deceased and the family connection between the two.

The Judge also agreed that the fact the deceased was the main caregiver for the grandson would also demonstrate an ongoing commitment to the child's maintenance.

However, the court did not award the full amount sought by the plaintiff in this case, which was estimated at $250,000. Instead, the Judge determined a more appropriate amount would be $195,000 in the form of a lump sum payment to be held on trust for the grandson's benefit. The remaining balance of the estate would be held in another trust.

This case was the third provision claim made against the estate. Both the child's mother and half brother successfully settled their family provision claims with the estate prior to the hearing.

For others in this situation, this case highlights the importance of updating your will, especially if it doesn't contain adequate provision for any children you are responsible for, such as a grandchild. Those who receive custody of a child following a death within the family will also need to understand the child's rights, in case they have not received an adequate provision from the estate.

For more information on making a family provision claim on behalf of a minor, make sure to get in contact with a wills and estates lawyer.