Does Dependency Alone Entitle You To Make a Claim for Provision on the Estate of a Deceased Person

Date: Jul 29, 2014
Document Type: Article

Section 57 (1)(e) & (f) of the Succession Act provides that the following persons are “eligible persons”:

(e).A person:  

(i)         Who was, at any particular time, wholly or partially dependent on the deceased person, and

(ii)        Who is a grandchild of the deceased person or was, at that particular time or at any other time, a member of the household of which the deceased person was a member.

(f). A person with whom the deceased person was living in a close personal relationship at the time of the deceased’s persons death.

The sub-section contains two parts namely 

  • a relationship of dependency, whether whole or partial; and
  • membership of the household of the deceased person.

The Succession Act does not contain a definition of the words “dependent on”.

The word “dependent” is an ordinary english word and whether a person is or has been wholly or partially dependent upon another is a question of fact. As well as financial dependence, a dependent in the ordinary sense of the word means the condition of depending on something or someone for what is needed.

Decided cases refer to the giving of financial or other material assistance by the deceased person over a significant period of time in order to meet a need of the eligible person with a result that the recipient has come to rely upon that assistance.

Dependency is not restricted to financial dependency but it does involve one person being beholden to another for some material or physical help. Emotional dependency is not enough.

“Partly” in the phrase “partly dependent” means more than minimally. The case law disregards trivial activities.

The second aspect of Section 51 (e) requires that the Applicant be a member of the same household as the deceased for some period of time. The Act does not specify a particular length of time during which the Applicant must have resided with the deceased.

As with the question of dependency whether or not an Applicant is a member of the same household as the deceased is a question of fact and degree.

Each case is decided on its on facts.

To speak with an experienced estate lawyer about matters involving wills and estates call us on 02 8268 4000.

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