What does the Court look at in determining a family provision claim?

Jun 9, 2023 | Publication

A family provision claim is a claim brought by a person against the estate of a deceased person seeking, in effect, an entitlement from the estate.  This may arise because the person has been ignored or overlooked by the deceased or arguably insufficient provision has been made.

In deciding whether or not to grant a family provision order, the Court first looks at whether the person is an ‘eligible person’ as defined by the Succession Act.

Examples of an ‘eligible person’ include a spouse or child of the deceased.

The Court will consider when deciding whether to make a family provision order such matters as:

  1. Any family or other relationship between the applicant and the deceased person, including the nature and duration of the relationship;
  2. The nature and extent of any obligations or responsibilities owed by the deceased person to the applicant, to any other person in respect of whom an application has been made for a  family provision order or to any beneficiary of the deceased person’s estate;
  3. the nature and extent of the deceased person’s estate (including any property that is, or could be, designated as notional estate of the deceased person) and of any liabilities or charges to which the estate is subject, as in existence when the application is being considered;
  4. the financial resources (including earning capacity) and financial needs, both present and future, of the applicant, of any other person in respect of whom an application has been made for a family provision order or of any beneficiary of the deceased person’s estate;
  5. if the applicant is cohabiting with another person—the financial circumstances of the other person;
  6. any physical, intellectual or mental disability of the applicant, any other person in respect of whom an application has been made for a family provision order or any beneficiary of the deceased person’s estate that is in existence when the application is being considered or that may reasonably be anticipated;
  7. the age of the applicant when the application is being considered;
  8. any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate of the deceased person or to the welfare of the deceased person or the deceased person’s family, whether made before or after the deceased person’s death, for which adequate consideration (not including any pension or other benefit) was not received, by the applicant;
  9. any provision made for the applicant by the deceased person, either during the deceased person’s lifetime or made from the deceased person’s estate;
  10. any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person;
  11. whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased person’s death and, if the Court considers it relevant, the extent to which and the basis on which the deceased person did so;
  12. whether any other person is liable to support the applicant;
  13. the character and conduct of the applicant before and after the date of the death of the deceased person;
  14. the conduct of any other person before and after the date of the death of the deceased person;
  15. any relevant Aboriginal or Torres Strait Islander customary law;
  16. any other matter the Court considers relevant, including matters in existence at the time of the deceased person’s death or at the time the application is being considered.

The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this publication is accurate at the date it is received or that it will continue to be accurate in the future. We are not responsible for the information of any source to which a link is provided or reference is made and exclude all liability in connection with use of these sources. If you do not wish to receive newsletters from us, please let us know.

Latest Insights

How Vicissitudes Impact Future Economic Loss in Legal Cases

When it comes to calculating future economic loss in legal cases, one concept that often arises is "vicissitudes." But what exactly are vicissitudes, and how do they affect the compensation awarded to plaintiffs? In this article, we'll delve into the definition of...

Can you still make a claim?

Many claims have limitation periods. A limitation period is a set time frame within which an aggrieved person must commence proceedings in a Court. These limitation periods generally commence from the date of the injury and/or incident. Some claims however, such as...

Teacher convicted for failing to report sexual abuse of a child

Teacher, Mr Webb of Trinity College Perth, was unsuccessful in his appeal against his conviction of failing to report sexual abuse of a child in a decision delivered on 13 October 2021. In April 2017, a group of boys from the school went on a school rugby trip to...

Annual Dinner – Parramatta & District Regional Law Society

Western Sydney's legal profession gathered for the Annual Dinner of the Parramatta & District Regional Law Society at CommBank Stadium! We are particularly grateful to Dr Hugh McDermott MP, Parliamentary Secretary to the Attorney General, Senior Vice...

What compensation can I get if I have been injured at work?

If you have a work-related injury or illness, you may be able to claim compensation for lost income, medical expenses, travel expenses, domestic assistance, pain and suffering and permanent impairment. All employers are required to have workers compensation insurance...

Court makes provision for son left out of father’s Will

The recent Supreme Court of New South Wales decision of Rathswohl v Court  NSWSC 356, involved 3 siblings disputing their entitlements to their late father’s estate. The defendant, Yvette, claimed she cared for her father for the last 18 months before he...

If I die without a Will what can happen?

If you die without a Will there can be many unintended consequences. Some of these consequences may be: A person who you do not intend could control your estate.  This could even be someone you do not know.  An executor is a person who controls an estate...