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Family Provision Claims may be able to be made against an Estate even where it seems there are no Estate assets…

Family Provision claims are about challenging a Will and have nothing to do with the Family Law Act.

The Court can alter a deceased person’s Will and make provision for an ‘eligible person’ from one of four broad categories of relationship to the deceased, namely –

  1. Spouses (including married or de facto spouses and former spouses);
  2. Children;
  3. Grandchildren (who must also have been dependant upon the deceased at some time); and
  4. A person who at some time was a member of the deceased’s household and dependent upon the deceased (e.g. step-children, foster children, etc).

Many people are unaware that ‘superannuation’ may not necessarily be included in a deceased person’s estate. This is because superannuation is already money held in a superannuation trust fund for the member of the fund. When the member dies the Trustee of the Superannuation Fund will pay the money to those persons the Trustee decides should benefit.

In such circumstances, the Supreme Court can declare the money in a superannuation fund to be ‘notional estate’ that can then be the subject of a Court Order for payment of provision to an eligible person.

In one case a deceased person was survived by his second wife from whom he was separated and also by a son in his late teens from his first marriage. The deceased had no assets in his estate but he had a sizeable amount in a superannuation fund.

The Trustee of the Superannuation Fund decided to pay the superannuation benefits to the Solicitor for the deceased member’s estranged second wife and the son received no money. Further, once the former wife’s Solicitor received the moneys from the Superannuation Trustee, the former wife ignored the son’s claim for a share of those superannuation moneys and instructed her Solicitor to pay the moneys to her.

We acted for the son of the deceased and made an application to the Supreme Court for an urgent injunction to restrain the wife and her Solicitor from distributing those funds. The Court granted the injunction and later made a declaration that the superannuation moneys were ‘notional estate’ of the deceased and ordered the wife to pay a share of those moneys to the son by way of provision from the deceased’s estate.

Please contact Brazel Moore Lawyers on (02) 4324 7699 for more information on how to make a Family Provision claim.

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