New South Wales

Section 57(1) of the Succession Act 2006 (NSW) limits the categories of possible eligible applicants who can make a claim on a deceased’s estate to those persons who are either closely related or who have had a significant relationship with the deceased.

The categories of possible eligible applicants are:

• spouse of the deceased;

• de facto partner of the deceased;

• natural or adopted children of the deceased;

• foster children;

• stepchildren;

• former spouse of the deceased;

• grandchildren of the deceased;

• member of the household of the deceased; and

• person living in a close personal relationship with the deceased.

The fact that a person falls within an eligible category of applicant does not automatically make them eligible. More is required. See Proof required by each type of applicant.

However, if an applicant does not fall into one of the above category they cannot make a claim.

Categories such as parents of the deceased, siblings, step children, nephews and nieces are not automatically eligible applicants but may be eligible if they fall into one of the other categories such as being a member of the household of the deceased.

Victoria

Until 1 January 2015, s 91(4) of the Administration and Probate Act 1958 (Vic) did not prescribe particular categories of persons who are entitled to apply for provision from a deceased's estate.

The Act refers to persons "for whom the deceased had responsibility to make provision".

The courts may take into account "any family or other relationship" and this relationship need not be based on dependency.

Possible claimants could include:

• spouse (or ex spouse) of deceased including same sex-spouse;

• natural, adopted, step- and foster children of the deceased;

• grandchildren;

• nieces or nephews;

• carers (both paid and unpaid);

• a person in a close relationship with the deceased;

• a person who may be been dependant on the deceased (financially or non financially);

• a member of the household of the deceased; and

• friends and neighbours.

The merits of the claim is assessed on a “case by case” basis.

After 1 January 2015 a person must be an "eligible" person in order to bring a claim: s 90A of the Act. The categories of possible eligible applicants are (broadly speaking):

• spouse or domestic partner of the deceased;

• natural or adopted children of the deceased;

• stepchildren;

• person whom the deceased believed was his/her child;

• former spouse of the deceased;

• grandchildren of the deceased;

• registered carer; and

• member of the household of the deceased.

The fact that a person falls within an eligible category of applicant does not automatically make them eligible, more is required. See Proof required by each type of applicant.

However, if an applicant does not fall into one of the above category they cannot make a claim.

Categories such as parents of the deceased, siblings, foster children, nephews and nieces are not automatically eligible applicants but may be eligible if they fall into one of the other categories such as being a member of the household of the deceased.

Practice Tip: It is unclear whether the factors of "obligations and responsibilities" and the "benefits previously given" may contemplate charities who were reliant on regular donations, or creditors requiring regular repayments of loan instalments.

Queensland

In Queensland, only a “spouse, child or dependant” may apply for family provision order: s 41(1) of the Succession Act 1981 (Qld).

The definition of “dependant” is quite limited in Queensland.

Western Australia

Section 7 of the Family Provision Act 1972 (WA) limits the categories of eligible applicants by listing the eligible applicants.

South Australia

Section 6 of the Inheritance (Family Provision) Act 1972 sets out the persons entitled to claim under the Act as:

• the spouse of the deceased person;

• a person who has been divorced from the deceased person;

• the domestic partner of the deceased person;

• a child of the deceased person;

• a child of a spouse or domestic partner of the deceased person being a child who was maintained wholly or partly or who was legally entitled to be maintained wholly or partly by the deceased person immediately before his death;

• a grandchild of the deceased person;

• a parent of the deceased person who satisfies the court that he cared for, or contributed to the maintenance of, the deceased person during his lifetime; and

• a brother or sister of the deceased person who satisfies the court that he cared for, or contributed to the maintenance of, the deceased person during his lifetime.

Tasmania

Section 3A of the Testator’s Family Maintenance Act 1912 (Tas) limits the categories of possible eligible applicants who can make a claim on a deceased's estate to those persons who are either closely related or who have had a significant relationship with the deceased.

The categories of possible eligible applicants are:

• spouse of the deceased (which includes a person with whom a person is in a significant relationship within the meaning of the Relationships Act 2003 );

• natural or adopted children of the deceased;

• stepchildren;

• if there is no spouse or children, the parents of the deceased;

• a person formerly married to the deceased who was receiving or entitled to receive maintenance from the deceased at the date of the death of the deceased; and

• a person formerly in a significant relationship with the deceased who was receiving or entitled to receive maintenance from the deceased at the date of the death of the deceased.

If an applicant does not fall into one of the above category, then they cannot make a claim.

Northern Territory

The family provision regime is embodied in the Family Provision Act (NT).

In the Northern Territory, the court can, in its discretion, make a variety of orders varying the terms of the will or intestacy provisions in relation to the estate: s 8 , Family Provision Act 1970 (NT).

Under s 16 of the Act provides that any order made by the court under family provision is deemed to act as if it is a codicil to the will of the deceased. Hence the court is actually amending the will as if the testator made a codicil during their lifetime. If the deceased died intestate, a family provision order operates to modify the applicable rules of distribution.

Australian Capital Territory

Section 7(1) of the Family Provision Act (1969) limits the categories of possible eligible applicants who can make a claim on a deceased's estate to those persons who are either closely related or who have had a significant relationship with the deceased.

The categories of possible eligible applicants are:

• partner of the deceased;

• a person who was in a domestic relationship with the deceased for two or more years continuously at any time;

• natural or adopted children of the deceased;

• foster children;

• stepchildren;

• grandchildren of the deceased;

• a parent of the deceased.

The fact that a person falls within an eligible category of applicant does not automatically make them eligible and more is required. See Proof required by each type of applicant.

However, if an applicant does not fall into one of the above category, then they cannot make a claim.

See Categories of eligible applicants.

Mason and Handler Succession Law and Practice NSW > Succession Act 2006 > SUCCESSION ACT 2006(COMMENCED 1 MARCH 2008) > CHAPTER 3 FAMILY PROVISION [ss 55–100] > PART 3.2 FAMILY PROVISION ORDERS [ss 57–73] > DIVISION 1 APPLICATIONS FOR FAMILY PROVISION ORDERS [ss 57, 58] > [s 57] s 57 Eligible persons (cf FPA 6(1), definition of “eligible person”) > COMMENTARY ON SECTION 57 > [s 57.1] Application