Firstly, the person making the family provision claim needs to be deemed eligible to do so. Once eligibility is established, the two-step legal test applied to a Family Provision Application is as follows:

1. Whether adequate provision has been provided under the Will of the deceased for the applicant’s proper maintenance, education, and advancement in life, or alternatively under the rules of intestacy;
2. If it is proven that the deceased has inadequately provided for the applicant, a Court will determine what further provision ought to be made out of the estate in favour of the applicant.

The Court will examine all the relevant facts of the case, including the following:

• The relationship between the deceased person and the applicant;
• What obligations or responsibilities were owed by the deceased person to the applicant;
• Valuation and location of the estate of the deceased;
• The financial circumstances of the applicant, including their current and future needs;
• Whether the applicant is financially supported by another person;
• If there is any other person who is responsible to support the applicant;
• If the applicant suffers from any physical, mental or intellectual disabilities;
• The age of the applicant;
• The applicant’s character
• If the applicant made any contributions to the deceased person’s estate to increase its value;
• Whether the deceased person had already made provision for the applicant during their lifetime or from their estate;
• Whether the deceased person supported the applicant or provided maintenance and assistance;
• If any other claims have been made on the estate;
• Anything else the Court considers relevant.
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Making a Family Provision Application usually involves the Supreme Court, which can result in significant costs. The legal costs incurred will depend upon the issues you choose to pursue and the extent you wish to pursue them. The conduct of all parties involved in the litigation can also play a significant role in the legal fees incurred. We take on many litigation cases on a ‘No Win, No Fee’ or deferred payment basis, subject to our determination of the client having reasonable prospects of success.

If you would like to find out more about the costs involved in making a Family Provision Application or our legal fees, please contact us any time on 1800 621 071 to find out more.

The costs of a Family Provision Claim are at the absolute discretion of the court. Usually, the successful party in legal proceedings will have some of their legal fees paid by the other party.

The court may consider:

• whether a party has failed to comply with the rules or a practice direction of the court;
• whether irrelevant material was put before the court;
• the estate size and value;
• any offer of settlement made by the parties; and
• any other factors the court considers relevant.
  
  

If the applicant is unsuccessful in their claim, the Judge may make no order as to costs. What this means is that the applicant would then be responsible to pay for their own legal fees. The applicant may also be required to contribute to the executor’s costs incurred when defending the proceedings.

It is for this reason that it is imperative that you get the right advice from the start from an experienced estate litigation lawyer who can assess your claim and determine your prospects of success before you begin your application. Our Sydney lawyers will advise you on the strength of your case and likely outcome, including any expected costs.