Member of the Household

A member of the household of the deceased person is a further category of eligible person who may apply to the Court for provision, or additional provision from the estate.

Being a member of the household does not automatically entitle the person to challenge the Will or estate, and there are further hurdles before a Court can hold the applicant eligible and order for provision made. The three hurdles a member of the household needs to overcome to establish jurisdiction of the Court to make the order are: 

1. That the person claiming was a member of the household of the deceased at any one time; and

2. That the person claiming was wholly or partially dependent on the deceased person at any particular time; and

3. There are factors which warrant the making of an order.

Member of the Household - what does it mean?

Being a member of a household is more than simply visiting, or even staying under the same roof of the deceased person. A household is a group of people living together as a unit.

This mutual cooperation to the running of the household was highlighted in the case of Russell v NSW Trustee and Guardian. In Russell the claimant had contested the estate claiming eligibility as a member of the household. The claim was dismissed, with the Court holding that living independently in the back shed, coming and going as one pleased with no involvement in the running of the house did not satisfy the requirement of being a member of the household.

Do I have to be a member of a household for a minimum amount of time?

There is no minimum time period in which a person must live as a member of a household. Despite this, a short stay will usually not evidence being a member of the household as being a member of the household connotes a degree of continuity and permanency of mutual living arrangements.

I was at one time a member of the household, was I dependent?    

It is not enough to simply be a member of the household at some particular point in time of the deceased's life. In addition to this requirement the Act requires that the person challenging the Will to establish that he or she was at some point in time wholly or partly dependent on the deceased person.

The dependence need not have occurred at the time the person was a member of the household, although it is common for the two to exist at the same time, for instance, where the member of the household was not paying rent and was dependent on the accommodation being provided.

As with being a member of the household, whether the person challenging the Will was at some point in time 'dependent' on the deceased is a question of fact. There is no single test for dependency and in looking at all of the circumstances the Court will determine whether the deceased came to rely on the assistance, be that financial, emotional or physical.

Dependence must also be direct, for instance, it is usually insufficient for a child to claim dependence in circumstances where the benefit or support being provided was to the child's parent. In that instance the dependence is indirect as the child is directly dependent on his or her parent.

I was both dependent on the deceased and a member of the household - what's next?

Being dependent and at some point a member of the deceased's household does not automatically enable a Court to make an order for provision. This is so as the person challenging the Will must establish that there are factors which warrant the making of an order. 

Factors warranting means that there must be circumstances which give the person claiming the status of a person who would generally be regarded as a natural object of testamentary recognition of the deceased person. Whether this is so will depend on all of the circumstances, including the closeness of the relationship and whether the deceased person made prior testamentary statements regarding the person claiming, such as a prior Will.

Is there anything else the Court takes into account?

Once the Court is satisfied that the person challenging the Will or estate was (a) at some point a member of the household, (b) at some point wholly or partly dependent on the deceased, and (c) that there are factors warranting the making of an order, the Court can proceed with determining whether the provision made in the Will was inadequate, and if so, whether an order should be made to disturb the Will.

In performing this task the Court has regard to a range of matters including:

All cases have their own particular circumstances, and each of the above factors plays a part in determining whether a claim is ultimately successful.

This category of eligible person faces a number of hurdles before they can make a successful challenge to a Will. While a general overview has been provided above there are a number of subtleties for each of the hurdles described above and it is important that you seek advice from the lawyers in the contested estates division because they regularly appear before the Court in these types of applications.

If you have ever been a member of the household of a deceased person and wish to find out whether you have a case to challenge the Will and/or seek provision from the estate, then receive a no obligation assessment of your personal circumstances by an experienced estates lawyer, at no cost, by contacting us or commence our online assessment by clicking here.