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Can my niece or nephew make a claim against my Estate?

A family provision claim is the most common form of a claim against a deceased estate. 

A family provision claim is an application to the Court for a share or a larger share from the estate of the deceased person.  The claimant is therefore someone who has received no provision in a Will, or a provision which they say is not adequate for their proper maintenance, education, or advancement in life.

A family provision claim requires the claimant to be an eligible person. 

One category of an eligible person is a person who was wholly or partly dependent upon the deceased and a member of the household of which the deceased person was a member. 

The NSW Supreme Court recently decided a claim by two nieces against their aunt’s estate in Noble v Durrant [2023] NSW SC 513.  The relationship of aunt/niece is not one where a party can bring a claim as a matter of right and it instead requires the Court to determine eligibility, and that there are reasons why the Court should depart from the terms of the Will.

In Noble v Durrant, the Supreme Court considered the eligibility of two nieces, Charlotte and Carolyn, in a claim over their aunt’s estate.  The two adult nieces had lived in the same household as children after their mother passed away.  They remained living there until they were teenagers.  The aunt was one of the members of the extended families which cared for Charlotte and Carolyn on the family farm.

The Court determined that the nieces were eligible persons, however, decided there were no factors warranting the making of a claim against the estate.  The factual matters relevant to this determination included:

  1. The nieces did not ever live with their aunt just on their own, either as children or adults.  They were members of the extended family.
  2. The nieces were never materially financially dependent upon their aunt either as children or adults.
  3. Neither niece contributed in any material way to the welfare of the aunt or her assets.
  4. For many years prior to the aunt’s death, the nieces had fallen out with their aunt and had greatly upset her to the point where the aunt did not want them to attend her funeral.  The Court found that the evidence did not establish a relationship beyond that of an aunt/niece relationship which would place upon the deceased an obligation to provide for the two nieces in her Will.  Neither Charlotte nor Carolyn received anything under the Will.

Family provision cases turn on the factual background and the relationship between the parties. 

If you believe you may be an eligible person, early advice on the prospects of your claim is vital and strict time limits can apply.  

Our team of Estate Litigation lawyers are available to assist you with advice about any potential claims.

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