There is no legal requirement to leave a bequest to any person in particular when preparing a Will. However, in New South Wales there is legislation in place that allows “eligible persons” to whom the deceased owes a “moral obligation” to apply to the Court for a Family Provision Order in respect of an estate of a deceased person if they are not adequately provided for in the Will.
The following is a list of “eligible persons” who may apply to the Court:
- a person who was the wife or husband of the deceased person at the time of the deceased person’s death;
- a person with whom the deceased person was living in a de facto relationship at the time of the deceased person’s death;
- a child of the deceased person;
- a former wife or husband of the deceased person;
- a person:
- who was, at any particular time, wholly or partly dependant on the deceased person; and
- who is a grandchild of the deceased person or was at any other time, a member of the household of which the deceased person was a member; and
- a person with whom the deceased person was living in a close personal relationship at the time of the deceased person’s death.
The definition of “child” is further defined in the NSW legislation including:
- a child born to the deceased;
- a child adopted by the deceased;
- in the case of a de facto relationship between a man and a woman, a child of whom the deceased is the presumed parent; and whose long term welfare both parties have parental responsibility;
- in the case of a de facto relationship between two women, a child of whom the deceased is the presumed parent; and
- a child for whose long term welfare both parties have parental responsibility.
(Interestingly, the Act makes no specific provisions for the child of a de facto relationship between “two men” apart from the inference at (e) above.)
Although there is no specific requirement that children be provided for under a Will, if they are an “eligible person” to whom the deceased owed a “moral obligation”, they could apply to the Court for provision for their maintenance, education or advancement in life.
Any claim must be made not later than 12 months after the date of death of the deceased unless the Court otherwise orders.