The Death of a relative- Family Provision Claims

Written on the 27 February 2015 by Macmillans Waller Fry - Solicitors Maitland

Farming Grazing Property


The death of a close relative is a most upsetting and tragic event made sometimes more onerous for all of the family when a relative who considers that there should have been provision made for them in the Will is " left out".

In NSW the law provides that a Court may ( Chapter 3 of the Succession Act 2006) make provision for a person who is not expressly provided for in the Will.

A concise statement of the facts of the case are contained in the courts judgment relating to the grandson's circumstances:

This appeal concerned a claim for a family provision order brought under Chapter 3 of the Succession Act 2006 (NSW) by the respondent in respect of the estate of his deceased grandfather. Under the will, the whole estate consisting largely of a grazing property and pastoral business passed to Mrs Wilcox, the deceased's only child (and the respondent's mother). She was the sole executrix. The primary judge ordered that provision be made for the respondent by an immediate payment of $107,000 and seven annual payments of $40,000 commencing after two years.

The respondent had the training and skills to earn $100,000 per year but preferring instead to make a subsistence living by operating a tree lopping business. He had no assets to speak of and owed $107,000 to the Australian Taxation Office. The respondent's father had recently won $1.3 million gambling and expressed some willingness to give him some financial support. There had been limited contact between the respondent and the deceased since early 1993. Mrs Wilcox, the deceased's only child, had devoted a large part of her life to his pastoral business of which she was a part owner. She assisted her father in both business and personal matters, assumed sole responsibility for him in his old age and was a caring and dutiful daughter. The pastoral business was "borderline viable" and beset by the usual problems that attend such businesses, such as drought and unpredictability. There was no practical scope to raise money by selling off part of the land and the limited borrowing capacity that did exist needed to be devoted to the financial requirements of the enterprise itself.

On the basis of these facts, the primary judge found that community standards and expectations required that provision be made for the respondent out of the estate and ordered provision to the extent of $387,000 by the instalments referred to above. The primary judge also ordered that the respondent's costs be paid out of the estate."

Prior to a claim being made the person seeking a provision from the Will must be an eligible persons. This class of persons is defined in Section 57 of the Act and particularly regarding grandchildren the Act states:


(e) a person: (i) who was, at any particular time, wholly or partly dependent on the deceased person, and (ii) who is a grandchild of the deceased person or was, at that particular time or at any other time, a member of the household of which the deceased person was a member, "

It must be recognised that there is not simply a "right" in people to make a claim but rather you must fit into the required categories. Legal Advice from our Solicitors should be immediately sought to determine if you qualify to make a claim.

The Court made an important observation concerning grazing/farming properties and Wills when it stated:


There may be circumstances in which widely held community standards might expect a grandfather to make some provision for his grandchildren, for example where they had maintained a strong relationship and where there was reason to doubt the willingness or the ability of the parents to make adequate provision for their children. However, such considerations will always be influenced by the fact that the grandchildren are themselves mature adults. In the present case, relevant community values will be affected by the nature of the estate. Quite particular values might operate with respect to farming properties which are subject to fluctuations in relation to debt and revenue depending on natural events and particularly drought. They may also be affected by the financial viability of an estate and its capacity to support those owning or managing it, if broken up and part disposed of."

( our emphasis)

When the Court considered all of the evidence from the trial it held that there was no "social, domestic or moral obligation on the part of the testator to provide for the claimant."

Overall it is true to say that there is an expectation on the part of the beneficiaries to a Will that the property of the deceased person will be dealt with as the Will directs.


If you have a concern about the Will of a close relative or defacto partner and feel that you have not been properly acknowledged and provided for or that you have been left out altogether then contact Macmillans Waller Fry - Solicitors on 4933 5355 immediately for proper legal advice on your rights.

Author: Macmillans Waller Fry - Solicitors Maitland




Who we are


What we do


Macmillans - Accountants

Address:40 Church Street

Maitland NSW 2320

Phone:02 4933 4444

Fax:02 4933 7781



Online PaymentContact Us