Mid Mountains Legal Blog

FAMILY PROVISION CLAIMS (NSW) – FINANCIAL NEEDS

Anthony Steel

An important criteria against which the Supreme Court of NSW assesses family provision claims (e.g. contesting a Will) 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 in NSW

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 (e.g. a spouse) 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. For example, if a parent leaves her estate to his children, each of whom has similar levels of financial need, it would be difficult for one child to claim that he deserves a larger share of the estate than his or her siblings. However, if the claimant’s siblings are all financially secure and the claimant is not, then a fair but unequal distribution of the estate reflective of the claimant’s greater need would be reasonable.

Case Study

In the case of Stone v Stone [2019], the Supreme Court of NSW illustrates the importance of a claimant proving financial need in a family provision claim. In this case, the deceased mother left her estate to her son and made no provision in her will for her estranged daughter. The siblings argued over the division of the estate.

The daughter’s claim contained an unsupported brief reference to her financial need, with no details on her income and liabilities. She also disclosed that she was in a de facto relationship without providing any details of her de facto partner’s financial circumstances.

The court directed the claimant to provide additional material on her financial circumstances before the hearing, but she failed to comply. The court found that, in these circumstances, they could not make any determination at all on financial need. The daughter’s claim was dismissed, and she was ordered to pay the defendant’s legal costs.

This case is a clear reminder that the onus of proof in a family provision claim is on the claimant. If a claimant does not provide evidence of financial need, their claim is unlikely to succeed.

The case is also a reminder of the importance of meeting court deadlines. If a claimant who is ordered to provide evidence of financial need does not comply within the ordered period, then the court may refuse to admit this evidence after the deadline.

We can help you establish your financial need in a Family Provision claim. Contact us for any advice or guidance in making a claim against a deceased estate.

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