Estate Planning

Return to Estate Planning Publications


The Deceased, Jose Averol Martin-Rodriguez, met the Applicant, Julie Anne Lawrence, in 1994. Both were married at the time. Julie’s marriage ended in 1995 and Jose’s marriage ended in 1996. The couple moved in together in September 1996. Jose’s divorce from his ex-wife, Maria, was finalised in 1999. Jose and Julie had a loving relationship which lasted around 16 and a half years.

Jose passed away in 2013. He left a Will dated 2 June 1978. As the Will was prepared 20 years before Jose began a relationship with Julie, she was not a beneficiary. Under the terms of the Will, Jose’s estate was to pass to Maria, however given that they were divorced, the estate was to be distributed as though Maria died before Jose, meaning that the estate was to be distributed in equal parts to their children, Tony and Daniel. The value of the estate was approximately $1.3million.

Julie made an application for a Family Provision Order under the Succession Act 2006 (NSW). She submitted that she needed $660,000.00 from the estate in order to be adequately provided for.

What steps must the Court take in deciding an application for a Family Provision Order?

The Court must be satisfied that:

A.    The applicant is an eligible person within the meaning of Section 57(1) of the Act.
B.    The Will did not make adequate provision for proper maintenance, education or advancement in
       life of the Applicant.

If the Court is satisfied that the Applicant is an eligible person, and that adequate provision has not been made, the Court may make an order. At that stage, the Court must decide:

A.    Whether it will make a Family Provision Order.
B.    And if so, the nature of the Order.

What can the Court consider in determining an application for a Family Provision Order?

The Court may consider a number of factors that are listed in the Act. These include the Applicant’s financial position, the size and nature of the deceased’s estate, the totality of the relationship between the Applicant and the Deceased, the circumstances and needs of other beneficiaries, or potential beneficiaries and whether the Applicant has a need or needs. His Honour stated that the Court does not need to consider all of the matters listed in Section 60(2).

His Honour pointed out that the Court is not empowered to achieve some kind of equity between the various beneficiaries, reward the Applicant, or correct the Applicant’s hurt feelings. The Court’s role is to determine whether an eligible person has been provided for adequately and, if they have not, the Court can make an order for adequate provision from the estate.

His Honour commented that the affidavits lodged were littered with criticisms of the other parties. He noted that it is not appropriate that proceedings under the Succession Act be used as a vehicle to express personal emotions or to criticise the behaviour of an Applicant or other members of the family.

What factors did the Court take into account in this matter?

When considering Julie’s situation, the Court noted that Julie was 60 years old, had some health issues and was concerned about losing her job. She owned a property worth $1.5 million as joint tenants with Jose and after his death the ownership of that property was transferred to her. The Court accepted that there was a financial interdependence between Julie and Jose. Julie took three months off work to care for Jose while he was suffering from health problems. The Court accepted that Julie had a loving relationship with Jose which lasted for a number of years and which would have continued but for his death.

In determining the application, His Honour also had regard to the situations of the other beneficiaries. Tony is a Civil Engineer and qualified Project Manager. His wife is a part-time teacher. They have two young children and a mortgage over their home. Daniel is a tradesman with bi-polar disorder and widespread arthritis. These conditions have impacted on his earning capacity. He has very few assets aside from the superannuation pay-out he received following his father’s death. He has no liabilities.

The Court also had regard to the fact that Jose had verbally told his sons that he intended to provide for them in his Will.

What did the Court decide?

As Julie was in a de facto relationship with Jose, she was an eligible person within the meaning of the Act. Jose had an obligation to make adequate provision for her proper maintenance or advancement in life. Jose also had an obligation to his children, Tony and Daniel. His Honour held that Jose did not make adequate provision for Julie. His Honour made an order that Julie should receive a lump sum of $350,000.00 from the estate.

What does this mean for you? 

If you feel that you have been unfairly treated in a Will, you may have a claim under the Succession Act. Similarly, if you are a beneficiary under a Will, you need to be aware that an eligible person could seek to alter the contents of the Will so that they are provided for.

At Rankin Ellison Lawyers we can assist you with these matters. Please call 1300 727 813 to speak to one of our lawyers.

A full copy of the decision is available here.

Related articles:
- Estate Planning For De Facto And Second Marriages
- Is It Time To Update Your Will?

Sydney: 02 8297 5900 Newcastle: 02 4929 9333  

Submit your enquiry via the form below and we will reply
within the next business day.

*Required fields

Your privacy is important to us. Any information that you give to us remains confidential and will not be shared.