If you are a relative of the deceased person and you are left out of the will, the Law (Succession Act, 2006) may rectify this situation. Broadly speaking, the Act provides that where the testator (i.e. the deceased person who made the Will) does not make adequate provision in their Will for the proper maintenance, education and advancement in life of certain defined dependants, the Court may in its discretion do so.
An application under the Act must be made within twelve months of the death of the deceased. The executor of the deceased estate can apply to the Court to have this period of time shortened, while an applicant can apply to have it extended.
Persons who are eligible to apply to the Supreme Court seeking an order that a provision be made from an estate for the maintenance, education or advancement in life of the eligible person include:-
- Who was the wife or husband of the deceased person at the time of the deceased person’s death
- With whom the deceased person was living in a domestic relationship at the time of the deceased person’s death
- A child of the deceased person, or if the deceased person was, at the time of his death or her death a party to a domestic relationship, a person who is, for the purposes of the Property (Relationships) Act 1984, a child of that relationship
- A former wife or husband of the deceased person
- Who was at any particular time wholly or partly dependant upon the deceased person
- Who was a grandchild of the deceased person or who was at the particular time or at any time a member of the household of which the deceased person was a member
A domestic relationship is defined as:-
- A de facto relationship; or
- A close personal relationship (other than marriage or a de facto relationship, and not necessarily a sexual relationship) between two 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 (but excluding paid domestic and person carers including those working for government or charitable organizations)
- A de facto relationship is defined as a relationship between two adult persons who lived together as a couple and who are not married to one another or related by family
The Court will take all of the circumstances of the relationship into account to determine whether two people are in a de facto relationship, including matters such as:-
- The duration of the relationship (generally at least two years)
- The nature and extent of common residence
- Whether or not a sexual relationship exists
- The degree of financial dependence or interdependence, and any arrangements for financial support, between the parties
- The ownership, use and acquisition of property
- The degree of mutual commitment to a shared life
- The care and support of children
- The performance of household duties;
- The reputation and public aspects of the relationship
If the Court makes any provision for a person’s maintenance, education or advancement in life under the Act, the amount awarded by the Court comes from the estate or notional estate of the deceased (see below) and takes community standards into account.
Other factors that can influence whether provisions are made for an applicant under the Act include the character and conduct of the applicant before and after the death of the deceased, any contribution made by the eligible person towards the deceased property or welfare, or any other matter that the Court considers important (example the financial means and needs of the applicant).
A person sometimes disposes of their assets while they are still alive (this is sometimes to prevent those assets going to certain eligible people after their death). Accordingly, to overcome this, the Court may make orders against the “notion” (i.e. disposed of) estate of the deceased. This is to enable the Court to overrule these disposals. A notional estate includes assets and property which the deceased had owned but disposed of for less than market value (known as a “prescribed transaction”). For the Court to intervene, the prescribed transaction must have taken place within:-
- Three years prior to the death of the deceased if the exchange took place with the intention to denying proper provision for an eligible person from the estate
- Within one year prior to the death of the deceased if at that time the deceased had a moral obligation to make proper provisions for an eligible person
- On or after the death of the deceased
Whilst the Court always has a discretion as to who pays the legal costs of the proceedings, generally the costs of a successful application under the Act.