What Does It Mean to Be Dependent on the Deceased? A Guide to Family Provision Claims in NSW

Justeen Dormer
Apr 26, 2021
3 min read

Updated: May 21

Family Provision Claims

To make a family provision claim under section 57 of the Succession Act 2006 (NSW), you must be classified as an eligible person. One way to establish eligibility is by demonstrating that you were wholly or partly dependent on the deceased and are either their grandchild or were a member of their household. However, the meaning of 'dependent' in this context is not explicitly defined in the legislation. This article explains how NSW courts have interpreted this term and what it means for your potential family provision application.

I’ve Been Given Some Money in my Loved-One’s Will, but it isn’t Enough to Meet my Needs

Understanding 'Wholly or Partly Dependent'

It is straightforward to identify situations where someone is wholly dependent on another person. For example, a young child who relies entirely on their parent to meet all their needs would be considered wholly dependent. However, the phrase 'partly dependent' requires further clarification.

In McKenzie v Baddeley [1991] NSWCA 197, the court clarified that 'partly dependent' means more than trivially or minimally dependent, but less than substantially dependent. This interpretation provides a middle ground for assessing dependency in family provision claims.

Importantly, the degree of an applicant's dependence does not necessarily correlate with the amount they may receive through a family provision claim. Depending on the circumstances, an applicant who was only partially dependent could receive provision similar to what they would have received if they were wholly dependent.

What Types of Dependency Qualify?

Whether a person is dependent on another is determined on a case-by-case basis, as established in Aafjes v Kearney [1976] 180 CLR 199. While financial dependence is the most common form of dependency considered by the court, it is not the only type that qualifies.

Financial Dependency and Beyond

In Ball v Newey [1988] 13 NSWLR 489, the court 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, the court noted that while other forms of dependence often flow from financial dependence (such as accommodation, food, and clothing), the term should not be restricted to financial dependence alone.

To illustrate this point, the court used the example of young children who are commonly said to be dependent on both parents, even if only one parent works to support the family financially. Therefore, it would be a misuse of language to restrict the meaning of dependency to financial dependence only.

A Holistic Approach to Dependency

The requirement for courts to consider the entirety of the relationship between the applicant and the deceased remains in place today. This principle was recently reaffirmed in Spata v Tumino [2018] NSWCA 17, which emphasised that the term 'dependent' should not be given a restricted construction.

As a result, dependency in the context of family provision claims can be established by demonstrating various types of reliance on the deceased, including:

Financial dependence: Relying on the deceased for income, housing, or other financial support
Emotional dependence: Relying on the deceased for emotional support and companionship
Material dependence: Relying on the deceased for accommodation, food, clothing, or other necessities

Each case is assessed individually based on its unique circumstances and the nature of the relationship between the parties.

Do You Have Grounds for a Family Provision Claim?

If you believe you have not been adequately provided for in your loved one's will, and you were dependent on them (either wholly or partly) and were either a member of their household or their grandchild, you may have grounds to bring a family provision application.

At Dormer Stanhope, we understand how difficult it can be to navigate estate disputes while grieving the loss of a loved one. Our experienced team can provide clear guidance through every step of the process, ensuring you understand your rights and options. We offer affordable legal solutions tailored to your circumstances, with confidentiality and compassion at the heart of everything we do.

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