What dictates the success of a family provision claim?

Published 14 Dec 2016

Being left out of a will entirely isn't the only reason people feel aggrieved after these documents are actioned. In some cases, people who have received some compensation still feel like they need to contest a will to receive a fair amount.

There are a number of considerations a judge will keep in mind when reviewing family provision claim cases, as while a will may provide some compensation for an individual, it's not always enough to accurately reflect the relationship or provide for their ongoing needs.

What are some common motivations for these cases?

It's rare that all beneficiaries listed on a will all receive similar value. Between property, money and other assets like jewellery and vehicles, estates are made up of a diverse range of items, many of which have sentimental value to potential beneficiaries.

In some cases, a plaintiff may feel aggrieved that another sibling received jewellery items that had certain significance. In others, property may be given to only one sibling for a reason that isn't apparent to those that missed out.

In others, a beneficiary may have ongoing medical needs - physical or mental - that provide a significant financial burden. If compensation from a will doesn't account for these, people can use it as a basis to start a family provision claim.

Can they be based on relationship characteristics?

There are instances where people believe the financial compensation they receive doesn't provide a true account of their relationship with the deceased. A recent case before the Supreme Court in NSW detailed a relationship where the deceased's daughter spent years caring for her father, an action that caused her significant financial strain. When the father passed, this relationship was not recognised in the amount she received. The issue was made worse by the fact that other siblings that did not help her care for the deceased received significantly more.

The court does take examples of support such as this into account, as well as elements of the plaintiff's character to gain an accurate idea of the relationship with the deceased and whether the claim is valid or not.

What's the best course of action?

To ensure your case is worth taking to the courts, it's essential to talk to lawyers who are experienced in this field. The team at Gerard Malouf and Partners can review your family provision claim and represent you on a no win no fee basis. Get in touch with them today to find out more.

  • NSW Offices
  • North Parramatta
  • Sydney
  • Penrith
  • Ryde
  • Blacktown
  • Liverpool
  • Chatswood
  • Campbelltown
  • Erina
  • Newcastle
  • Wollongong
  • Ballina
  • Tamworth
  • Wagga Wagga
  • Miranda
  • Rockdale
  • Baulkham Hills
  • Bondi Junction
  • Mudgee
  • Tweed Heads
  • VIC Offices
  • Melbourne
  • QLD Offices
  • Brisbane
  • Bundall
  • ACT Offices
  • Fyshwick
Phone 1800 004 878 to book a free appointment