Challenging a Will – How the Court Decides Whether to Make a Family Provision Order

How the Court decides whether to make a Family Provision Order 

In our last article, we discussed eligibility to apply for an order for a provision out of an estate under the Succession Act 2006 (NSW) (‘the Act’). This article will discuss how the Court decides whether to make an order for family provision for an eligible person. 

The court may make a family provision order in relation to the estate of a deceased person if the it is satisfied of two matters. The first is that there are factors which warrant the making of the application, in the case of a former spouse, dependent grandchild or member of the same household, or person living in a “close personal relationship” with the deceased. The second is that adequate provision for the proper maintenance, education or advancement in life has not been provided to the applicant. This generally translates to a requirement that the applicant show financial need for further provision from the estate.

The Act provides a list of matters which may be considered by the court in determining whether there are factors warranting and whether to make a family provision order. These include,

  1. any family relationship between the applicant and the deceased person, including the nature and duration of the relationship; 
  2. the nature and extent of any obligations or responsibilities owed by the deceased person to the applicant;
  3. the nature and extent of the deceased person’s estate;
  4. the financial resources (including earning capacity) and financial needs, both present and future, of the applicant; 
  5. if the applicant is cohabiting with another person and the financial circumstances of the other person; 
  6. any physical, intellectual or mental disability of the applicant that is in existence when the application is being considered or that may reasonably be anticipated; 
  7. the age of the applicant when the application is being considered;
  8. any contribution by the applicant to the acquisition, conservation and improvement of the estate of the deceased person before death; 
  9. 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; 
  10. any evidence of the testamentary intentions of the deceased person;
  11. whether the applicant was being maintained, either wholly or partly, by the deceased person; 
  12. whether any other person is liable to support the applicant; 
  13. the character and conduct of the applicant before and after the date of the death of the deceased person; and 
  14. any other matter the Court considers relevant.

This list is not exhaustive, and the Court may take into account any of these matters. 

If you believe that you have been left out of a will or would like advice from our experienced team about contesting an estate, please contact us for more information.  

 

The information contained in this article is not a substitute for legal advice and should be considered as general information only. 

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