Demonstrating a lack of reasonable financial provision is the most important and most difficult thing to prove, in a Family Provision Claim. The claimant will need to show that, the amount (if any) that he/she is to get under the Will or the rules of intestacy, are not enough to make a reasonable financial provision for him/her.

It is usually insufficient for the claimant to simply claim that he/she simply needs financial assistance or that it is not fair that his/her parent did not leave them anything in their Will.

The entire circumstances of each case will be examined by the court and the following are some of the factors that will be considered:

a) The financial resources and needs of the claimant including earning capacity, financial obligations and debts, the standard of living of the claimant and the extent to which the deceased contributed to the claimant’s life style during the deceased’s life;

b) The manner in which the claimant was being or might expect to be educated or trained;

c) In the case of a step-child, whether the deceased had assumed responsibility for the step-child’s maintenance and if so to what extent and duration. Also, whether there is another who is financially responsible for the step-child;

d) The size and nature of the estate; and

e)  Any physical or mental disability of the claimant or other beneficiary.

Sometimes a person will write an explanation in their Will as to why he/she has not made any provision for their child or step-child. The court will consider any such explanation, but will weigh it against all the other factors which the court is required to take into account.

If the court considers that an order should be made in the claimant’s favour, this order can be for a lump sum payment, periodical payment or for the transfer of property. Regardless of what the order is, it can only be made from the net estate of the deceased.  If some of the estate has already been distributed the court has power to recover these assets for the purposes of making an order in the claimant’s favour.

There is no simple rule of fairness. You cannot just expect to be treated equally with your brothers and sisters. You must prove that the court should make an award in your favour.

Ask a lawyer for a preliminary assessment of the strength of your claim.  This will assist you in making the decision as to whether to proceed with your claim. Find a lawyer who will confidently and assertively ensure that your rights are protected.  This information should be available to you, right there, on the phone. Click here for more information.