Once you establish that you are eligible, you must then show that you did not receive “reasonable financial provision” from the deceased’s Estate as a result of the rules of intestacy.
This means such financial provision that is reasonable in all of the circumstances of the case and sufficient for your maintenance. This would be an amount that is sufficient to enable you to live comfortably and decently according to the standard of living that you have become accustomed to during the deceased’s lifetime.
It is insufficient to simply show that you would like some financial assistance or that it is not fair that you did not receive anything from the Estate.
The court will examine the entire circumstances of each case and will weigh up the following factors:
- Your financial resources and needs including your earning capacity, financial obligations and debts, the standard of living and the extent to which the deceased contributed to that standard;
- The manner in which you were being or might expect to be educated or trained;
- Whether the deceased had assumed responsibility for your maintenance and if so to what extent and duration. It will also be considered whether there is or was another person financially responsible for you i.e. your biological parent;
- The size and nature of the estate; and
- Any physical or mental disability of you or other beneficiary.
The court must ultimately decide whether the fact that you did not receive a share of the estate on intestacy was unreasonable.
The court will endeavour to reach a decision which is fair to all parties involved and a balance must be struck between your claim, the beneficiaries who receive the Estate under the rules of intestacy (who may include your step-siblings) or any other claimants who commence a family provision claim.
If the court considers that an order should be made in your favour, this order can be for a lump sum payment, periodical payment or for the transfer of property such as the deceased’s house. An order can only be made from the net Estate of the deceased. If some of the Estate has already been distributed to beneficiaries, the court has power to recover these assets for the purposes of making an order in your favour.
A competent lawyer can assess the strength of your claim and assist you in making the decision to proceed with your claim or not. They should confidently and assertively ensure that your rights are protected.