Understanding the key factors the court considers in a Family Provision Claim can help you manage your expectations and prepare your case. The information in this article is general only and does not constitute legal advice. A lawyer specialising in estate disputes can assess your eligibility to make a Family Provision Claim and guide you through the process.
Eligibility to Make a Claim
Not everybody can make a Family Provision Claim. The Succession Act 2006 (NSW) outlines specific categories of ‘eligible’ individuals. These generally include:
- The deceased person’s spouse or de facto partner at the time of the deceased’s death.
- A child of the deceased.
- A former spouse of the deceased, in certain circumstances.
- A person who was, at any time, wholly or partly dependent on the deceased, and is either a grandchild of the deceased or a member of the household of which the deceased was a member.
- In some circumstances, a person who was living in a close personal relationship with the deceased at the time of their death.
Adequacy and Provision
If an applicant is eligible, the court must consider whether adequate provision has been made for them and, if not, what provision should now be made from the estate.
- Was the provision made for the applicant adequate?
The court will determine if the Will-maker (the deceased person) failed to make adequate provision for the applicant’s proper maintenance, education or advancement in life. This isn’t about being ‘fair’ or equal; it’s about whether the Will provided enough for the applicant’s proper maintenance and support in the circumstances.
If the court decides the provision was not adequate, it moves to the second question.
- What provision should now be made from the estate?
The Key Factors the Court Will Weigh
The Succession Act 2006 provides a non-exhaustive list of matters the court may consider when deciding whether to make a family provision order and the nature of any such order. This is where the specific evidence about the applicant’s life and the estate comes into play.
These factors are not a checklist where one point guarantees success. They are considered together to build a complete picture of the claim, with each case assessed on its merits and the circumstances.
1. The Applicant’s Financial Needs and Resources
The applicant will need to present a comprehensive, transparent picture of their financial life.
- Present and future needs: The court looks at an applicant’s ongoing costs, like housing, medical expenses, and education. If the applicant is older, the focus might be on a stable retirement and aged care. For a younger applicant, the focus might be on their education and establishment.
- Earning capacity: The applicant’s ability to work and support themself is crucial. An applicant with a disability, in poor health, or who is too old to work may typically have a stronger claim.
- Existing resources: The court will look at the value of the applicant’s assets (superannuation, property, savings) and income. If living with a partner, their financial circumstances may also be relevant.
2. The Size and Nature of the Estate
The court cannot give something that is not there. The size of the estate sets the boundary for any potential order.
- Estate value: A larger estate generally allows the court more flexibility to provide for an applicant without severely diminishing the shares of other beneficiaries.
- Nature of assets: Is the estate tied up in one property? Are the assets liquid (cash) or hard to sell? This affects how easy it is to make provision.
3. The Relationship and Obligations
The history of the relationship between the applicant and the deceased is vital when establishing a moral duty.
- Relationship duration and quality: A long, close, and loving relationship (e.g., a marriage of 40 years) will carry significant weight. However, a difficult or estranged relationship does not automatically defeat a claim. The court will investigate the reasons for the estrangement.
- Obligations owed: Did the deceased have a legal or moral obligation to support the applicant? This is particularly relevant for minor children, surviving spouses, or those who were financially dependent on the deceased.
4. The Applicant’s Contributions to the Deceased or the Estate
Any contribution made by an applicant to help the deceased accumulate, maintain, or improve their wealth is a strong factor.
- Financial contributions: Directly contributing money to buy a house or invest in a business.
- Non-financial contributions: Providing significant care to the deceased during an illness, managing their household, or doing extensive work on their property without being paid are relevant factors.
5. The Deceased’s Reasons and Intentions
The court respects the Will-maker’s freedom to choose their beneficiaries, but their wishes are not absolute.
- Reasons in the Will: If the deceased left a document explaining why they excluded or limited the applicant’s share, the court will consider it. However, the court will assess whether those reasons were based on fact and whether they justify failing to meet the moral duty to provide.
- Previous provision: Did the deceased give the applicant a substantial gift during their lifetime (e.g., paid for a university degree, gave a house deposit)? This may count towards provision already made.
6. The Circumstances of Other Beneficiaries
The court is not only concerned with the applicant’s needs; it must also consider the impact any new order will have on those who were named in the Will (the beneficiaries).
- Competing Family Provision Claims: If other claims are being made, they will be considered together.
- Needs of beneficiaries: If a beneficiary is disabled, elderly, or has significant financial need, the court will be reluctant to reduce their inheritance substantially. The court strives to balance the competing needs and duties.
7. Character and Conduct
In some cases, an applicant’s behaviour towards the deceased, either before or after their death, can be considered.
Key Takeaways for Potential Claimants
- Act quickly: Time limits for making a Family Provision Claim in New South Wales are strict, being 12 months from the date of death.
- It’s not about punishment: The court’s role is not to punish anyone or to rewrite the Will based on what is ‘fair’ in a social sense. It is purely focused on ensuring proper maintenance and support for eligible persons.
- Evidence is everything: To succeed, you must provide detailed, verifiable evidence about your financial situation, health, living costs, and the history of your relationship with the deceased.
If you or someone you know wants more information or needs help or advice, please call 02 9150 6991 or email ad***@**********om.au.