Who is a "Dependant" in Family Provision Applications?
When a person dies and if the provisions of their Will fail to make adequate provision for the proper maintenance and support of their spouse, child or dependant, section 41 of the Succession Act 1981 (Qld) (“the Act”) gives the Court power to make an order for provision or further provision out of the Deceased’s Estate. This is known as a Family Provision Application.
Although it is usually clear whether or not a person is a “spouse” or “child” of the Deceased, identifying their “dependants” can be less obvious. For the purposes of a Family Provision Application, “dependant” is defined in section 40 of the Act to mean, in relation to a deceased person, any person who was being wholly or substantially maintained or supported (otherwise than for full valuable consideration) by that deceased person at the time of the person's death being:
- A parent of that deceased person;
- The parent of a surviving child under the age of 18 years of that deceased person; or
- A person under the age of 18 years.
What constitutes dependency?
In the recent decision of Snodgrass v Estate of McLaren, the Court considered this definition of “dependant”. Ms Snodgrass had made a Family Provision Application in relation to the Estate of her former de-facto partner, Mr McLaren. The executor, Mr McLaren’s son, sought that Ms Snodgrass’ application be dismissed.
Ms Snodgrass and Mr McLaren had lived in a de facto relationship for about 3 years. They had one son who was 3 years old when his father died (a year after the parties had separated). Following separation, Ms Snodgrass began working “seven days on and seven off”. She and Mr McLaren agreed on a shared caring arrangement for their son, such that when she was “on”, Mr McLaren provided the care and when she was “off”, she did.
Ms Snodgrass did not prima facie meet the definition of a “dependant”. However, the question for the Court was whether Ms Snodgrass was “substantially supported” by Mr McLaren at the time of his death, in circumstances where the “support” was him taking on the care of the child in alternate weeks, thereby freeing up Ms Snodgrass’ earning capacity. Ms Snodgrass maintained that Mr McLaren’s care of the child enabled her to obtain and maintain well paid employment and, absent that support, she was now obliged (or felt so obliged) to give up that employment to discharge her duties as a mother.
The Court was not, however, required to finally determine the matter on this occasion. After concluding that Ms Snodgrass’ application was “not unarguable” and not “so hopeless” as to merit summary dismissal, the Judge dismissed the executor’s application. It will be necessary to await the final trial to establish whether or not the concept of “support” is limited to direct financial contributions and further, whether it is appropriate to bring into account “past events and future probabilities” in Family Provision Applications. If it is found that “support” extends to indirect support and is informed by future probabilities, Ms Snodgrass’ application may well succeed.
If you believe that you have not received a fair entitlement out of a loved one’s Estate, we recommend that you obtain legal advice.
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