In order to make a family provision application under section 57 of the Succession Act 2006 (NSW), you must be an eligible person. One avenue to establish you are eligible is by showing that you were at any time wholly or partly dependent on the deceased and are a grandchild of the deceased or were a member of their household. However, what ‘dependent’ means in this context is not particularly clear from the legislation. This article will outline some of the ways the court has interpreted this term.
‘Wholly or Partly’
It is easy to imagine situations where someone would be deemed wholly dependent on someone else, such as a young child who relies on their parent to meet all their needs. What is meant by ‘partly dependent’ is much less clear. In McKenzie v Baddeley [1991] NSWCA 197, the phrase was given some clarification when it was held that ‘partly dependent’ meant less than substantially dependent but required more than trivially or minimally dependent.
Interestingly, an applicant’s degree of dependence bears no necessary relation to the amount recoverable through a family provision application, and depending on the circumstances, an applicant who is only partially dependent could receive provision which is indistinguishable from what they would have received if wholly dependent.
Dependent?
The question of whether a person is dependent on another is a question of fact: Aafjes v Kearney [1976] 180 CLR 199. However, what sorts of dependency qualify for the purpose of determining whether a potential family provision applicant is an eligible person requires closer examination than a simple dictionary definition of dependence.
There is no doubt that one of the most common forms of dependency is financial dependence, however, it is not the only category that the court will consider. In Ball v Newey [1988] 13 NSWLR 489, it was held that the ‘whole relationship’ between the applicant and the deceased should be examined not just their financial dependence. Similarly in Petrohilos v Hunter [1991] 23 NSWLR 559, whilst the Court noted that other forms of dependence flow from financial dependence (accommodation, food, clothing, etc.), the term should not be constricted to only mean financial dependence. Illustratively, an analogy was given to young children who are commonly said to be dependent on both their parents even if only one of them works to support the family’s financial needs. It was said therefore to be a misuse of language to restrict the meaning of the phrase to mere financial dependence. The requirements that the court consider the whole of the relationship between the applicant and the deceased, and that the term not be given a ‘restricted construction’ remain today, having been reiterated numerous times including recently in Spata v Tumino [2018] NSWCA 17.
Therefore, dependency when discussing a person’s eligibility to make a family provision application can be established by pointing to a variety of circumstances such as their financial, emotional or material dependence on the deceased. Each matter will be assessed on its own circumstances looking at the entirety of the relationship between the parties.
If you believe you have not been sufficiently provided for in the will of your loved one, you may have been dependent on them and were a member of their household or their grandchild, you may have grounds to bring a family provision application. At Dormers, we can advise and assist you with this process.
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