How do future financial situations affect family provision claims?

Published 09 Feb 2016

Author: David Cossalter

In many cases, people are motivated by their financial situations when they decide to contest a will. If they feel as though they haven't received what they should be entitled to, it can have a notable impact on their financial security.

While most of these examples concern the current financial situation of someone who is contesting a will, some recent cases have seen family members submit a family provision claim based on their future intentions. In these instances, while the provision of an estate has been adequate for their the time being, it may not be appropriate for upcoming changes in their lifestyle.

What does a family provision claim usually include?

The Family Provision Act seeks to ensure that a deceased's family members have access to the financial resources necessary to live comfortably. For this provision to be granted, the court has to be sure that an amendment to the will is essential to ensure further education or advancement in life for the family member making the claim.

There are a number of considerations the courts will take into account during these cases. These include the applicant's current financial situation, including aspects such as property ownership, the earnings potential offered by their current employment, the requirement for further medical care and support and the financial circumstances of their partner at the time.

Can these claims involve future financial conditions?

While there are certain conditions in place for applicants that require provision for future financial needs, these are judged on a case-by-case basis. While in some instances applicants will be granted further provision for the sake of medical care or other ongoing costs essential to their quality of life, there are other instances where people may be turned down.

A recent case before the NSW Supreme Court was an important example of this. While a brother and sister were adequately provided for by their deceased mother's estate, they requested further remuneration for their future financial needs.

In particular, the pair requested further provision to purchase a property that might secure their financial future. The deceased's daughter also requested a larger share so that she could start a family in the future. However, this was denied on the basis that their current financial needs were already sufficiently provided for and anything extra would be surplus to these needs.

If you're thinking about contesting a will, it's important to consult a team of lawyers. Contact the team at Gerard Malouf and Partners today.

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