An important criteria against which the Supreme Court of NSW assesses family provision claims is the claimant’s financial need. It is important that a claimant prove financial need. It is not enough for them to simply claim that they are experiencing financial need. A claimant should be able to account for their finances, income and expenses, and that these circumstances show a need for greater financial provision.

Family provision claims

A person who believes that they have been unfairly provided for in a Will can make a family provision claim against the deceased estate. A claimant needs to establish that there is inadequate provision in the Will for their proper maintenance, education and advancement.

In determining whether to give the claimant further provision from the estate, the Supreme Court of NSW can only look at the facts before them at the time. So it is essential that a claimant be forthcoming and provide proof of their financial need to enable the court to determine the adequacy of the provision for them in the Will.

The strength of a claim will partly depend on the size of the estate and the competing needs of the existing beneficiaries and other claimants.

Financial need

The Succession Act 2006 provides that the Supreme Court of NSW may only award provision in an amount commensurate with the claimant’s proper support and maintenance. A claimant must gather sufficient evidence of their personal financial circumstances to establish financial need. They must make frank financial disclosure to the court of their assets, liabilities, sources of income, expenses and financial resources.

The court relies heavily on independent evidence of finances, such as bank statements. A claimant who is financially dependent on another person will probably have to provide the court with information concerning their spouse’s financial circumstances. Failing to disclose this information may impact the court’s ability to assess a claim.

Financial need is both relative (to measure the competing needs of different claimants) and objective (to measure whether the claimant can meet their daily needs). This is particularly true of the testator’s adult children. The court generally considers adult children as being able to support themselves and to no longer be the deceased’s dependents.

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