What does the Court take into account when deciding whether or not to make an order for family provision?

Once eligibility is established, the legal test applied in family provision applications is, in summary, as follows:

1. whether there is inadequate provision for the applicant’s proper maintenance, education and advancement in life under the Will of the deceased or the intestacy rules (this is a question of fact although it necessarily involves some value judgment); and
2. if so, what if any, provision ought to be made out of the estate in favour of the applicant (this is a discretionary exercise).

The Court will examine all relevant circumstances. In particular the following matters are relevant for the Court’s determination of the two stage test as set out above:

1. the nature and quality of the relationship between an applicant and a deceased;
2. the nature of the moral obligations or responsibilities owed by the deceased person to the applicant or a competing claimant (a beneficiary of the estate);
3. the size and nature of the estate of a deceased;
4. the nature and extent of the applicant’s present and reasonably anticipated future needs, including financial and health-related needs;
5. the nature and strength of the claims to testamentary recognition by a deceased of those taking benefit under a deceased’s Will;
6. any contribution, financial or otherwise, direct or indirect, by an applicant to the property or welfare of the deceased person;
7. the character and conduct of the applicant;
8. any provision made for the applicant by the deceased person (either during the deceased person’s life or after);
9. evidence of testamentary intentions of the deceased person; and
10. whether the applicant was being maintained by the deceased person.

This discretionary exercise, in which the Court considers all of the facts and circumstances, is undertaken to evaluate what provision community standards would require a person in the position of the deceased person to make for the applicant.

When preparing for a family provision application evidence must be compiled that addresses the range of matters the Court considers when undertaking the evaluative judgment as to whether provision should be ordered.

We have a dedicated Estate Litigation team that practices exclusively in this complicated area. If you think you may be eligible to make a claim on an estate, you are welcome to contact our office with any enquiries. Please contact our Estate Litigation Department Manager, Amanda Heather on direct line 07 5506 8245, email aheather@attwoodmarshall.com.au or free call 1800 621 071.