What factors influence the success of a Family Provision Claim?
Once the Court has established that the applicant is an “eligible person”, the Court then considers whether the deceased person’s Will has made adequate provision for the applicant’s proper maintenance, education and advancement in life. If the Court determines adequate provision has not been made, then the question is, what provision should be made from the deceased person’s estate to the applicant?
Being an eligible person to make a Family Provision claim does not guarantee a successful outcome. Once the Court has established eligibility, it must then consider whether adequate provision was made for the eligible person in the Will, and if not, then decide what provision is adequate, having regard to the individual circumstances of the case.
In making its decision, the Court may consider the following factors provided in section 60(2) of the Succession Act 2006 (NSW), as they are relevant to the circumstances of each case:
- The nature and duration of the relationship between the applicant and the deceased person;
- Any obligations or responsibilities owed by the deceased person to the applicant;
- The nature and extent of the deceased person’s estate;
- The financial circumstances of the applicant, including present and future financial needs;
- The financial circumstances of any person the applicant is co-habituating with;
- Any physical, intellectual or mental disability of the applicant;
- The applicant’s age;
- Any contribution (financial or non-financial) by the applicant to the estate or to the welfare of the deceased person, for which adequate consideration was not received by the applicant;
- 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;
- Any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person;
- Whether the applicant was being maintained, wholly or partly, by the deceased person before the deceased person’s death;
- Whether any other person is liable to support the applicant;
- The character and conduct of the applicant;
- Any applicable customary law if the deceased was Aboriginal or Torres Strait Islander;
- Any other competing claims on the estate; and
- Any other matter which the Court considers relevant.
