What is a family provision claim?
Our legal system has long recognised a person’s freedom to make a will and dispose of property in any way the person sees fit. This is known as ‘testamentary freedom’. This freedom, however, is subject to the court’s ability to make an order for provision out of an estate in favour of an eligible person, if the court considers adequate provision was not made for that person.
Testamentary freedom was first constrained by the introduction of The Testator’s Family Maintenance and Guardianship of Infants Act in 1916. This Act allowed the court to make an order in favour of a spouse or child if the deceased did not make adequate provision in the will.
In 1982 the scope of this legislation was expanded by the Family Provision Act and the term “Family Provision Claim” was introduced. The Family Provision Act broadened the class of persons who were eligible to make a claim.
Claims are now made under Chapter 3 of the Succession Act 2006, but the term “Family Provision Claim” continues to be used.
Who can make a family provision claim?
The legislation sets out who is eligible to make a claim. They are:
• A spouse
• A de facto spouse
• A child of the deceased
• A child of a de facto relationship to which the deceased was a party at the time of death
• A former spouse
• A grandchild who was at any time wholly or partially dependent upon the deceased
• A person who was at any time wholly or partially dependent upon the deceased and was at any time a member of the same household as the deceased
• A person who was in a close personal relationship with the deceased at the time of death.
What does the court take into consideration?
The court, first of all, decides whether adequate provision was made for the eligible person. If not, it then decides whether an order for provision should be made and, if so, what provision would be adequate in the circumstances.
The court takes into consideration a number of factors. For example, it takes into consideration:
• The nature and size of the estate
• The financial circumstances of the claimant as well as his or her spouse
• The financial circumstances of all the beneficiaries
• The relative earning capacities of the claimant and beneficiaries
• The relationship between the claimant and the deceased
• The obligations or responsibilities owed by the deceased to the claimant
• The relationship between the claimant and the deceased
• Any contributions by the claimant to the acquisition, conservation or improvement of the deceased’s estate
• Any contributions to the personal welfare of the deceased by the claimant
• Any provision already made to claimant
• The character and conduct of the claimant
• The conduct of any other person
• Evidence of testamentary intentions of the deceased
Family provision proceedings require full and frank disclosure of the financial position of all parties.
It is important to remember that there is no rule that the court ought to make equal provision for siblings.