Family Provision Claims – A Contest by any other name

In the last post we discussed making a family provision claim against the deceased estate – this is often referred to as contesting a Will.

Generally speaking a Family Provision Claim is made in a jurisdiction where the deceased lived at the date of their death, owned assets in that jurisdiction, or both.

In most Jurisdictions legislation governs who can bring a claim against a persons estate. Generally speaking this is: –

• The deceased’s spouse, a person living in a de facto relationship with the deceased at the time of death, a person living in a close personal relationship (such as a volunteer carer) with the deceased when the deceased died;
• The deceased’s child;
• The deceased’s former spouse;
• A person who was:
• Dependent (wholly or partly) on the deceased at a particular time (this may include a former de facto spouse, parent, sibling, or step-child; and
• A grandchild of the deceased, or a member of the household of the deceased;

and

• believe they have been left without adequate provision for the proper maintenance, education or advancement in life.

The Court takes a number of factors into account the applicant’s financial position, relationship with the deceased, the size of the estate and the deceased’s relationship with other persons who are eligible to make a claim.

Adequate provision is unique and therefore difficult to define.

The Court considers a broad range of factors, as the definition of adequate provision is unique to each circumstance brought before the court.

A recent claim concerned the Estate of Richard Pratt who died in April 2009 aged 74 as one of Australia’s wealthiest men. The following year, his former long-term mistress, (and the mother of his youngest child, Paula) Shari-lea Hitchcock claimed she was the billionaire’s “domestic partner”, and as such it was his “responsibility to make adequate provision for her proper maintenance and for her support”

It was reported that in a 2007 Will Pratt left Paula the home in which she was raised by her mother, a rural property and $23 million in shares held on trust until Paula turns 21. However Shari-Lea believed that she and her daughter had not been adequately provided for in Pratt’s Will.

Shari-lea failed as the claim was brought in NSW and Pratt had been living in Victoria when he died and did not personally hold any property in NSW. Shari-lea and the Estate agreed to a confidential settlement early this year.