Making a Claim on the Estate of Parent you have never met

Posted 24-02-2020
Written by admin 101

Even if you have never met your biological parent, you may still be able to make a claim on their estate. The RMB Lawyers Estate Planning division explains:

Unfortunately, some individuals do not have a relationship with their biological parents. In such situations, it is likely that there will be no provision for them in their parent’s Will when he or she dies.

Despite this, the child could still successfully make a family provision claim on their deceased parent’s estate through an application to the Supreme Court of NSW.

Under section 60 of the Succession Act 2006 (NSW), the Court is required to consider the relationship between the child and the deceased. The absence of a meaningful relationship will be taken into consideration by the Court but will not be the determining factor as the child may have a strong case in support of the other factors outlined in section 60. These include:

  1. The size of the deceased’s estate, which might be capable of providing some form of provision without significantly affecting other beneficiaries;
  2. The child may have a need for provision. They might be in significant financial difficulty or have health issues; and
  3. The deceased might not have made any financial contribution to the child throughout their life.

The case of Kohari v NSW Trustee & Guardian [2017] provides a tragic example of the complexity of family relationships. In this case, a 38-year-old son made a claim against the estate of his father. The son had no contact with his father since his parents separated when he was 18 months old. He had made two attempts to contact his father and establish a relationship, but the father refused and told other relatives that the son was not his.

When proceedings were commenced, the executors of the father’s estate disputed that the deceased was in fact the father of the claimant. The Court ordered a DNA test that confirmed that the deceased was the father of the claimant.

The son had no significant qualifications, had been unemployed for approximately 17 years and was reliant on social security payments. The estate was valued at $1.04 million.

The court held that adequate provision had not been made for the son and that provision of $100,000 acknowledged his status as the deceased’s son and was a sum which might be used by the plaintiff as a starting point for him to make provision for HIMSELF and his family.

If you have a similar experience or concern, and have a question, please  contact us. We'll be able to help you via a quick phone call, or ask us a question via email.