In a will you are able to specify how much and who to direct your estate to. In New South Wales, the Court can declare an”eligible person” to receive a share of an estate through a family provision order. Recently, the NSW Supreme Court considered whether a deceased woman’s stepson should receive a share of her estate. The woman’s estate was valued at about $650,000. In her will, she left one of her three biological sons in charge of her estate.
The woman did not leave anything to her stepson. In Court the stepson produced a previous will of the deceased that gave him a share of the estate. The Court considered the financial situation of the stepson. He had assets of about $200,000 and had medical conditions including cancer, depression, and tinnitus. The biological son had assets of around $190,000, he had four children with one suffering with ADHD and autism. The Court also considered other factors including the son and stepson’s relationship to the woman and her previous wills.
The Court had to decide as a threshold issue whether the stepson was an eligible person. The stepson had to be dependent and a member of the household. The Court was satisfied the stepson was dependent and a household member from age 14 before moving out at 18 years old.
The Court then looked at factors as to whether the woman had social, domestic, or moral obligations to the stepson. The woman included the stepson in her previous will. The woman was understanding and supportive when the stepson admitted his homosexuality. The woman had a relationship with the stepson before her marriage to his father. The stepson did not make a claim when the woman received the estate of his father even though he had an eligible claim. The Court was satisfied that these factors showed there was an obligation.
The Court then looked at whether a family provision order would assist the stepson’s advancement or maintenance in life. The Judge considered his current financial situation, medical conditions, and future treatment expenses. The Court ordered $130,000 to be paid to the stepson from the woman’s estate: $80,000 as the family provision order and $50,000 for legal fees.