What Is the Position of a Child Born Outside Marriage Claiming on an Estate?
Estate Hemmes: Cameron v Mead (2018) – Family Provision Claim
In 2018, the case of Estate Hemmes: Cameron v Mead involved a claim under the Family Provision Act. Specifically, the court was asked to make orders under the Succession Act to allow a child born outside the marriage of the deceased to receive a financial benefit.
Facts of the Case
In this case:
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The deceased’s will provided for his two children from his marriage; however, it excluded the child born from an extramarital relationship.
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Furthermore, the deceased did not acknowledge the claimant as his child, although DNA testing indicated a high likelihood of paternity.
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As a result, the deceased purposely excluded the claimant, leading to no social relationship due to the dispute over paternity.
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Additionally, the claimant received no direct support from the deceased; child support had only been paid to his mother.
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Despite these circumstances, the claimant was recognised as an eligible beneficiary under section 57 of the Succession Act.
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Consequently, the claimant was left without adequate provision for his maintenance, education, or advancement in life.
How the Court Approached the Issues
The court emphasised that paternity alone is not enough to justify a Family Provision claim.
However, it took into account that the claimant had carved his own way in the world without love or support from his father.
In addition, the court examined factors under section 60 of the Succession Act, including:
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The family or other relationship between the claimant and the deceased
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Obligations or responsibilities of the deceased toward the claimant
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The nature and extent of the deceased’s estate
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Financial resources and needs of the claimant
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Financial circumstances of any cohabiting partner of the claimant
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Any physical, intellectual, or mental disability of the claimant
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The age of the claimant
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Any lifetime provision from the deceased
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Evidence of the deceased’s testamentary intentions
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Maintenance provided before the deceased’s death
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Whether others are liable to support the claimant
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The character and conduct of the claimant
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Any other relevant matters
Outcome – A Positive Result
Ultimately, the court determined that the claimant was entitled to a legacy of $1.75 million. In reaching this decision, the court considered several key factors:
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The deceased’s moral duty to provide for the claimant
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The size of the notional estate, even though it had already been distributed
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The aspirations and future needs of the claimant
In summary, this case serves as a good news story for children excluded from a will. It demonstrates that, under the Family Provision Act, the court can provide for their maintenance, education, and advancement in life, even in the face of parental exclusion.
