In the legal area of Estate Planning and Probate, understanding the concept of an “eligible person” is of utmost importance. The Succession Act 2006 (NSW) (the Act) governs the distribution of assets and inheritance and provides a framework for determining who qualifies as an “eligible person” under section 57 of the Act.

Defining an “Eligible Person“

Under section 57 of the Succession Act 2006, an eligible person refers to an individual who is entitled to make a claim against the estate of a deceased person.

This claim is made on the basis that the provision made for them in the deceased’s will, or the statutory rules of intestacy is inadequate or insufficient. That is, given the circumstances of the case (past or present) there are factors which warrant the making of a family provision order for the proper maintenance, education, or advancement in life of the person in whose favour the order is to be made, but has not been made by the Will of the deceased person, or by the ioperation of the intestacy rules in relation to the estate of the deceased person: section 59.

The Act outlines specific categories of individuals who fall within the scope of eligible persons, ensuring that certain family members and dependents have legal recourse to contest a will or seek a greater share of the estate.

Understanding the Categories of Eligible Persons

The Succession Act 2006 recognises several categories of “eligible persons”, which include:

  1. Spouses (Husband and Wife) and de facto partners: The Act extends eligibility to spouses and de facto partners, acknowledging the inherent legal and financial obligations arising from marital or de facto relationships.
  2. Children: Biological or adopted children, as well as stepchildren and grandchildren, can qualify as eligible persons under the Act. This provision emphasizes the importance of safeguarding the interests of children within the context of inheritance.
  3. Former spouses: In cases where the deceased and their former spouse had not finalised a property settlement or formalised their divorce, the former spouse may be considered an “eligible person”.
  4. Dependants: Individuals who were wholly or partly dependent on the deceased at the time of their death, including individuals with disabilities or those in need of financial support, may be eligible to make a claim.
  5. Other persons: In exceptional circumstances, the Act grants the court discretionary power to deem other individuals as eligible persons if it can be demonstrated that they were wholly or partly dependent on the deceased and had a close personal relationship.

Why the Concept of “Eligible Persons” Matters

Understanding who qualifies as an eligible person is crucial for both testators (those creating a will) and potential claimants.

For testators, having knowledge of the categories of eligible persons allows them to make informed decisions when distributing their assets, thereby minimising the likelihood of disputes and legal challenges to their will. By taking into account the needs and potential claims of eligible persons, testators can ensure a fair distribution of their estate and potentially prevent lengthy and costly litigation.

For potential claimants, recognising their eligibility empowers them to exercise their legal rights and seek adequate provision from the deceased’s estate.

The Succession Act 2006 provides a legal framework that acknowledges the importance of providing for certain individuals who have a legitimate claim to the estate. It aims to strike a balance between honouring the testamentary wishes of the deceased and addressing the genuine needs and expectations of eligible persons.

The Matters to be considered by the Court

Section 60 outlines the test in determining an order:

In determining whether the person (the applicant) is an eligible person and so whether the court should make a family provision order the Court may have regard to the following:

  • Any family relationship between the applicant and the deceased person including the nature and duration of the relationship,
  • Nature and extent of any obligations or responsibilities owed by the deceased to the applicant,
  • Nature and extent of the deceased estate i.e. size and nature of the estate,
  • The financial resources of the applicant (including earning capacity and financial needs) of the applicant and other beneficiaries,
  • The financial circumstances of any person who is living/cohabitating with the claimant,
  • Any physical, intellectual or mental disability of the applicant and any other beneficiary,
  • The age of the applicant,
  • The contribution (financial or otherwise) of the applicant to the acquisition, conservation or improvement of the deceased’s estate – for example any support or contribution by the claimant to the personal welfare of the deceased such as paying medical bills, house modifications, caring for the deceased.
  • Any provision already given to the to the claimant by the deceased during their lifetime and from the estate,
  • Evidence of testamentary intentions, including evidence of statements,
  • The extent to which the claimant was being maintained by the deceased i.e. dependency, whether wholly or partly.
  • The character and conduct of the applicant before or after the death of the deceased such as estrangement and the reasons for this.
  • The character and conduct of the beneficiaries
  • Any other matter the Court considers relevant whether in existence at the time or when the application is made.

Conclusion

In the complex landscape of estate planning and succession, understanding the concept of an “eligible person” under the Succession Act 2006 is of paramount importance. This legal designation identifies individuals who are entitled to make a claim against a deceased person’s estate if they believe the provision made for them is inadequate. By recognising the various categories of eligible persons, the Act ensures that the interests and needs of certain family members and dependents are protected.

Whether you are a testator seeking to distribute your assets effectively or a potential claimant looking to understand your legal rights, comprehending the concept of an “eligible person” will empower you to navigate the complexities of succession law with confidence and instruct your lawyer appropriately to determine whether the Will is resistant to content or if you have a reasonable prospect of success in contesting a Will.

Contact our Wills & Estate Planning Lawyers in Sydney CBD

Call Richard McDonald of McDonald Law on 02 8824 4736 or email us for an appointment at [email protected]. Our wills and estate planning lawyers in Sydney CBD will be able to assist you, provide honest feedback, and give you practical options.