The late Dean Mervyn Jones, a cricket player who played for Australia in the 1980s and 1990s, died in September 2020 at 59 years of age from a sudden heart attack. His Will, prepared in 2012, left his Estate to his widow, Jane Jones (Jane), and his two daughters, Phoebe and Isabella.
In 2010 it emerged that Jones had been involved in a secret affair with flight attendant Kerri-Anne Hamilton (Kerri-Anne) that produced a son, Koby Hamilton (Koby). In October 2021 Koby, through his mother, Kerri-Anne, commenced proceedings in the Victorian Supreme Court against Dean’s Estate to seek an order that provision be made for Koby’s proper maintenance and support. In Victoria, a family provision application must be brought within 6 months of obtaining the grant of Probate.
In order to challenge a Will in New South Wales, which is known as making a family provision application (FPA), you must fall within a group of people called “eligible persons”. Eligible persons are defined in the NSW legislation, the Succession Act 2006 (NSW) (the Act). There are six categories of eligible persons who may make an FPA:
- the wife or husband of the deceased;
- a person who was living in a de facto relationship with the deceased;
- a child of the deceased;
- a former wife or husband of the deceased;
- a person:
- who was, at any particular time, wholly or partly dependent on the deceased, and
- who is a grandchild of the deceased or was at any particular time a member of the same household as the deceased; and
- a person with whom the deceased was living in a close personal relationship at the time of the deceased person’s death.
An eligible person has twelve (12) months from the date of the deceased’s death to commence an FPA in the NSW Supreme Court. However, the Court does have the ability to extend this time limit depending on the reasons for the delay in making the claim.
The Act provides that before the Court may exercise its power to make an order for provision, it must be satisfied that ‘at the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life [of the claimant] has not been made by the will of the deceased person, or by operation of the intestacy rules’.
In the case of Dean Jones, the nature and extent of any obligations or responsibilities owed by the deceased was of particular relevance. The obligation of the deceased depends on a combination of factors including the relationship between the deceased and the claimant, the deceased’s means, the needs, means of the claimant, and the competing needs of the various beneficiaries of the deceased’s Estate.
As at 1 March 2022, it remained unclear as to the precise value of Dean’s Estate with Jane insisting that Dean had minimal assets when he died. This matter is still ongoing in the Victorian Supreme Court.
Whilst a deceased estate may be large enough to satisfy all of the deceased’s obligations and responsibilities, if it is not, the Court will balance the respective obligations the deceased had toward each claimant and beneficiary.
The importance of getting advice as soon as possible regarding their rights, and indeed and potential FPA, is crucial for any person who may have questions about an Estate.
To discuss any FPA, Estate Planning or Estate queries you have may have, please contact our Estate Planning Department on 02 4626 5077 or via email at kwolthers@marsdens.net.au.
The contents of this publication are for reference purposes only. This publication does not constitute legal advice and should not be relied upon as legal advice. Specific legal advice should always be sought separately before taking any action based on this publication.
