If the Court is satisfied that the person seeking a Family Provision order is eligible and has not received provision for the proper maintenance, education, or advancement in life by the Deceased, or if there is no Will, by the operation of the rules of intestacy concerning the estate, it may make a Family Provision Order. 

When the deceased left no Will, the intestacy rules determine how the deceased’s estate passes to beneficiaries in those circumstances. However, the Intestacy Rules may deprive the person seeking the order of entitlement under the Will. 

Eligible person

An eligible person can apply for a Family Provision order at any time within 12 months after the date of death of the deceased person.

Section 57 of the Succession Act 2006 (NSW) outlines the persons eligible to claim family provision. These persons include

• the wife or husband of the deceased at the time of the deceased’s death,
• the de facto partner of the deceased at the time of the deceased’s death,
• a child of the deceased,
• a former wife or husband in certain circumstances,
• a person who was dependent on the deceased at any time and who is a grandchild of the deceased, or
• was a member of the household of which the deceased was a member, and

• a person who was living in a close personal relationship with the deceased at the time of the deceased’s death.

Suppose a Teststors has left eligible persons without adequate provision for their proper maintenance, education, or advancement in life. In that case, they can commence proceedings in the Supreme Court of New South Wales according to the provisions set out in Chapter 3 of the Succession Act 2006 (NSW) for family provision claims.

Close Personal relationship

A provision in addition to the standard eligibility categories allows someone with a “close personal relationship” with the deceased to dispute the Will. A “close personal relationship” means a connection between two adults who may or may not be related but are not married or in a de facto relationship. While the relationship can be romantic, it doesn’t qualify as a domestic relationship required to establish de facto legal rights.

More commonly, a close personal friend is someone who didn’t have a romantic relationship with the testator but lived with them and shared their life as a member of the same household. To contest a will in New South Wales under the Succession Act, a person in a close personal relationship must meet the following requirements:

• They must have been in a close relationship with the deceased.

• They must have lived with the deceased.
• They must have provided or received domestic support and personal care (not in exchange for payment or as part of a charitable undertaking).

The Court may consider matters listed in section 60 of the Succession Act 2006 (NSW), including

• the financial, material, or other circumstances of the claimant,
• the size of the deceased’s estate, and
• any other competing claims on the estate,

before deciding as to whether the testator left an eligible person without adequate provision for their proper maintenance, education, or advancement in life.

Frank v Angell [2024] NSWSC 158

Mr Willis (the deceased) had a profound interest in the development of the Solomon Islands, which included raising funds for water tanks and enabling heart patients to receive surgery at St Vincent’s Hospital in Sydney. Additionally, the deceased provided financial assistance to people from the Solomon Islands to pursue tertiary education in Australia. Catherine Angell, his daughter and executor, mentioned that her father had been aiding people from less advantaged countries since she was a child, “assisting people for as long as I can recall.”

Kim Hagie and Sharon Frank, the plaintiffs, were the last to receive support from the deceased. They and their three children were from the Solomon Islands and were residing in the deceased’s home when he passed away at 85. With the deceaseds financial assistance and free accommodation, Ms Frank completed her Bachelor of Arts degree. She had almost finished her Master of Arts degree to obtain a teaching job in the Northern Territory and gain permanent residency in Australia. The deceased left Ms Frank $50,000 in his Will to finish what he called “Project Sharon”. He also pardoned a debt of $80,000 and gave the family an extra year’s accommodation in his home. In his Will, he left the remainder of his estate to his four adult children: Catherine, Sarah, David, and Joanne. 

Ms Frank was no longer pursuing her Master of Arts degree at the time of the deceased’s death, and she has not resumed her studies since then, unbeknown to the deceased. However, the family stayed in the deceased’s house for another year. Their student visas had expired, and their efforts to obtain alternate visas had failed. They will likely return to the Solomon Islands shortly, where they have a home.

They sought between $300,000 to $450,000 under s 57(1)(e) or (f) of the Succession Act 2006 (NSW) on the basis that they were either the deceased’s dependents or had a close relationship with him.

The decision

The deceased was a meticulous record keeper, and the nature of his arrangements with the plaintiffs was clear. The plaintiffs were not dependent on the deceased in the relevant sense, as the funds provided by the deceased were loans, albeit on generous terms. The aid provided by the deceased went beyond the plaintiffs’ needs, providing an opportunity to change and improve their lives fundamentally. They were also not in a close personal relationship in the relevant sense.

Although they lived together, it was not due to family or friendship ties but because the deceased provided them with rent-free accommodation as part of his financial assistance. While Ms Frank provided the deceased with domestic support and personal care when his children could not assist him due to COVID-19 restrictions, particularly when David was stranded overseas for an extended period, this was provided “for fee or reward.”

Furthermore, no factors warrant making a family provision order in this case, and the plaintiffs would not typically be considered the natural object of the deceased’s testamentary recognition. The provision was deemed sufficient and generous; therefore, no additional provision was necessary. The Court dismissed the claims with costs.

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