What needs to be established to be successful in a family provision claim?

Written by Terry Johansson | 13th September 2013

The claimant must show that “reasonable financial provision” was not been made for them through the operation of the Intestacy Rules.

“Reasonable financial provision” means such financial provision that is reasonable in all the circumstances of the case and sufficient for the claimant’s maintenance. This means an amount that is sufficient to enable the claimant to live comfortably and decently according to the standard of living that they have become accustomed to during the deceased’s lifetime.

The claimant must be able to show more than that he / she simply needs financial assistance or that it is not fair that he / she did not receive a share of the Estate under the Intestacy Rules.

The court will examine all of the circumstances of each case and will weigh up numerous factors including:

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

b)    The size and nature of the estate; and

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

The court must consider whether the lack of any provision for the claimant under the Intestacy Rules produced an unreasonable result. The court will endeavour to reach a decision which is fair to all parties involved and a balance must be struck between the competing claims of the claimant, the beneficiaries under the Intestacy Rules or any other claimants.

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. An order can only be made from the net Estate of the deceased regardless of what the order is.  The court has the power to recover all or part of the Estate if it has already been distributed for the purposes of making an order in the claimant’s favour.

CWPL can assess the strength of your claim and assist you in making the decision to proceed with your claim or not. We will confidently and assertively ensure that your rights are protected.

Join the Discussion

International Issues

More info on Wills
& Inheritance?

More info

LGBT RightsWhere do you stand?

More info

Making a Will

Find out what’s involved

More info