Family Provision Orders Tightened

In previous updates we have indicated that disputes in Deceased Estates are becoming more common in our society.  For that reason alone whether you are an Executor, a named Beneficiary or a prospective Beneficiary in an Estate, it is in your best interests to contact our Firm and obtain appropriate legal advice on your rights.

Over the last few years the Supreme Court of NSW has exercised judicial discretion in many cases regarded now as too generous to some people who have made claims under the Succession Act 2006 (NSW) to obtain or increase their share in a Deceased Estate.  Only those persons who are defined as eligible persons under the legislation can make such a claim.  However, we have recently seen a consistent increase in the number of claims being made.

A Decision of the NSW Court of Appeal Lodin v Lodin (2017) tightened up the tests applied by a number of Judges in the Supreme Court of NSW when they determined whether or not an Order for Provision should be made in certain instances. 

In effect, the NSW Court of Appeal has made it clear that a Claimant who is in poor financial circumstances cannot use that fact to determine whether or not there has been adequate provision in the Will (see Sgro v Thompson which was considered in Lodin). 

In a similar way, the Court in Lodin made it clear that simply because a Claimant would ordinarily be a “natural object of testamentary recognition”, for example a child of a deceased parent, that fact should not be confused with all of the other tests set out in the legislation as to whether or not an Order for Provision should be made at all. 

The Decisions indicate a much more structured approach to the exercise of judicial discretion under the Succession Act 2006 (NSW) and a significant tightening of attitudes in the Court to unmeritorious claims.

If you require advice in this area, you should make an appointment with Matt Howlin through his Secretaries:

back to top

The Chambers

51 Croydon Street

Cronulla NSW 2230

t (02) 9523 6111

f (02) 9523 0785

PO Box 61 Cronulla 2230