The Court while determining Family Provision claims is not limited to the amount of support or benefit the Applicant received in his or her lifetime from the deceased person. Therefore, the Court will not take into account any argument regarding the Applicant’s financial position which enhanced due to the support or benefit provided by the deceased person, while determining the Family Provision claims.
Apart from the 2 stage process, the Court under Section 60(2) of the Succession Act 2006 (NSW Consolidated Acts) (the Act) may take into consideration other factors for determining Family Provision claims which may include the following:
- Type of relationship between the Applicant and the deceased person such as family member or any other relationship including *Nature and duration of the relationship;
- Nature and extent of any obligation or responsibility owed by the deceased person towards the Applicant;
- Nature and extent of the deceased estate including any property that is or could be designated as notional estate of the deceased person and any liability or charge to which the deceased estate is subject to;
- Financial resources of the Applicant including earning capacity and financial needs – both present and future;
- Financial situation of the persons who were cohabiting with the Applicant;
- Any physical, intellectual or mental disability of the Applicant;
- Age of the Applicant when the application for Family Provision claims are being considered;
- Any contribution including financials by the Applicant relating to the acquisition, conservation and improvement of the estate of the *Deceased person or towards the welfare of the deceased person or towards the deceased person’s family, made before or after *The deceased person’s death, for which adequate consideration was not received by the Applicant;
- If the Applicant was maintained wholly or partly by the deceased person before the death and if the Court considers it to be relevant that the extent to which and the basis on which the deceased person did so;
- Character and conduct of the Applicant before and after the demise of the deceased person;
- Conduct of any other person before and after the demise of the deceased person;
- Any relevant Aboriginal or Torres Strait Islander customary law; and
- Any other relevant circumstances, including matters in existence at the time of the demise of the deceased person or at the time the application was being considered.
Under Section 60 (2)(g) of the Act, the age of the Applicant is a relevant factor which needs to be determined at the time the Family Provision claims are being considered.
The age of the Applicant plays a vital role in determining Family Provision claims, for example a very young Applicant and a very old Applicant have greater needs for provision than a middle aged Applicant who will be able to support themself.
Onus of Proof and Adequate Maintenance
In any Court proceeding, the people asserting the facts always have the onus of proving.
In case of Family Provision claims, the Applicants or the persons who are claiming for provisions out of a deceased estate have the onus of proving that they are the eligible persons and the provisions stated in the Will are inadequate.
Individuals are entitled to make a claim against a Will in situations where a Will is valid but the provisions stated in the Will are inadequate. In such circumstances, the Court can make few changes in the Will or can distribute the estate in your favour.
If you are an eligible person, you can make Family Provision claims to the Supreme Court. The Court will determine your claim and can pass an Order to provide adequate provisions for proper maintenance, education and for advancement in your life.
Before determining a Family Provision claim, the Court looks into the requirements and needs of the Applicant. The Court also looks into the Applicant’s financial situation and whether such Applicant is able to meet financial requirements from their own resources or not.
If you need any assistance on this, you can contact our team of experts at Owen Hodge Lawyers for their sound advice.
However, the Court under Section 60(2) of the Act may consider the following when determining Family Provision claims:
- 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; or
- If the Applicant was maintained wholly or partly by the deceased person before the death and if the Court considers it to be relevant that the extent to which and the basis on which the deceased person did so.
‘Wise and Just’ Test
The Court while determining Family Provision claims must place itself in the shoes of the testator, as a wise and just Will maker, and should determine what provisions should have been made for the Applicant.
In Bosch v Perpetual Trustee Co Limited  AC 463, the wise and just test was first applied, wherein a rich testator died leaving a small portion of his estate for his son and the majority of his estate for the University of Sydney.
The Court held that “in every case the Court must place itself in the position of the testator and consider what he ought to have done in all the circumstances of the case, treating the testator for that purpose of a wise and just, rather than a fond and foolish husband or father.”
The Court accordingly held that the provision stated in the father’s Will for the son should be increased.
Relevance of Circumstances and Applicant’s Age
Under Section 60 (2) (p) of the Act, the Court considers any relevant circumstance which includes matters in existence:
- At the time of the demise of the deceased person; or
- At the time of Family Provision claims are being considered by the Court.