Overview of Family Provision Cases Where Eligible Person is a Dependant or Grandchild of the Deceased

Date: Sep 08, 2014
Document Type: Article

Being an eligible person is a necessary precondition to the Court making an order for provision out of the estate of a deceased person for the maintenance, education or advancement in life of the eligible person.

Section 57 (1)(e) & (f) of the Succession Act 2006 provides that eligible persons include:

(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 eligible person must commence proceedings within twelve (12) months from the date of death of the deceased person.

Having established eligibility and that the proceedings were commenced within time the next question for determination is whether at the time the Court is considering the Application, that is at the date of hearing the matter, adequate provision for the proper maintenance, education or advancement in life of the eligible person has not been made at all or has not been made by the will of the deceased.

Whether such provision has been made requires an assessment of the financial position, firstly of the eligible person and then, if applicable, of each other relevant individual including the partner of the eligible person and possibly other beneficiaries named in the will of the deceased.

The size and nature of the deceased’s estate, the relationship between the eligible person and the deceased and other persons who have legitimate claims upon the bounty of the deceased person including the circumstances and needs of those other persons are all matters the Court will consider in making a decision and delivering its Judgment.

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