It is common for a carer of the deceased to be left out of the Will, however succession laws may make them an “eligible person” under the law. This can give the carer the right to challenge or dispute the deceased’s Will in situations where they have been deprived of any or an adequate share of the deceased estate.
Succession Act 2006
The carer’s right to make a claim will be governed by the Succession Act 2006 (the Act) if you are based in New South Wales (NSW). The Act sets out the “eligibility criteria” of persons who can apply to the Court for a family provision order and they include:
- a wife or a husband;
- a person living in a de-facto relationship;
- a former husband or a wife;
- a person who was:
- wholly or partly dependent on the deceased; and
- a member of the deceased’s household at any point of time.
- a person who lived in a “close personal relationship”.
Moreover, the Succession Amendment (Family Provision) Act 2008 which commenced on 01 March 2008 and amended the Succession Act 2006 ensures that provisions to a deceased estate shall not remain restricted only to the family members of the deceased but also for certain other persons.
Rights as a Carer in Making a Claim on the Estate
Section 57 of the Succession Act 2006 and Clause 1(b) of Section 5 of the Property (Relationships) Act 1984 defines “Close personal relationship” as “a close personal relationship (other than a marriage or a de facto relationship) between 2 adult persons, whether or not related by family, who are living together, one or each of whom provides the other with domestic support and personal care”.
However a close personal relationship will not exist between two persons in situations where one person provides domestic support and personal care either on behalf of another person or an organisation or in lieu of a fee or a reward. Therefore, it can be assumed that you certainly have a right to make a claim on the deceased’s estate if you meet the eligibility threshold of:
- Being in a close personal relationship with the deceased;
- Not providing domestic support and personal care on behalf of another person or an organisation; and
- Not receiving any fee or reward in exchange for the care and support you offered.
Carers should make an application to the Court within a period of 12 months from the death of the testator along with sufficient evidence warranting such application. The time limit for making the application cannot be extended except by the Court and upon sufficient reason being shown. While making a favourable order for you, the Court will take into account the following:
- The relationship with the deceased;
- The obligations or responsibilities the deceased had towards you;
- The financial needs and earning capability;
- The nature and extent of the deceased’s estate or property;
- Whether you suffer from any physical, intellectual or mental disability,
- The contribution towards the acquisition, conservation and improvement of the estate or property of the deceased;
- Any contribution made towards the welfare of the deceased and the deceased’s family;
- Any provision made from the deceased’s estate during the lifetime of the deceased;
- Evidence of the deceased’s testamentary intentions; and
- Character and conduct during the deceased’s lifetime and after death.
Therefore carers may successfully make a claim on a deceased’s estate if they can establish before the Court that the deceased failed to make adequate provisions for your maintenance, as the deceased was otherwise required to make.