What allows a judge to make a family provision order?

Published 07 Jun 2018

Author: David Cossalter

Have you been left out of a loved one's will? Or perhaps your inheritance was much smaller than you were expecting? In NSW, you can challenge the contents of a will through a family provision claim.

If you are successful, the courts make a family provision order in your favour, which should result in you receiving a larger share of the deceased's estate. However, judges are often reluctant to overturn a person's final wishes, so they will only make family provision orders when certain conditions under the Succession Act 2006 are met. Let's examine the relevant criteria.

Are you an eligible person?

You cannot make a family provision claim unless you are an eligible person, which means you need to have had a specific relationship with the deceased. Eligible people include:

  • Spouses and de-facto partners;
  • Biological and adopted children;
  • Those who have been partly or wholly dependent on the deceased at any particular time; and
  • Grandchildren, but only if they lived in the same household as the deceased, either immediately prior to their death or at any other time.

Eligibility alone isn't enough to succeed with a family provision claim; you'll also need to show there are factors warranting your application for a larger share of the estate.

Your maintenance, education and advancement in life

Section 59 of the Act contains a frequently cited clause that judges use to gauge whether or not a claimant should receive a family provision order. The Act states that a claim can succeed if the deceased did not provide adequate provision in their will for the proper maintenance, education and advancement in life of the plaintiff.

In other words, did the individual put enough thought into your future when writing their final wishes? This may seem highly subjective, but judges will consider a range of objective evidence when making a decision, such as:

  • Your health and financial needs;
  • What provisions were made in the will;
  • The size of the estate;
  • Community expectations of leaving a legacy to family; and
  • The effect an order of provision would have on other beneficiaries.

As every claimant's circumstances are unique, assessing whether or not a family provision order should be made is difficult.

Nevertheless, Gerard Malouf & Partners Will Dispute Lawyers has decades of experience dealing with family provision claims and can guide you through every step of the process, from early settlements through to court proceedings, if necessary. Please contact us today about our no-win, no-fee service.

  • 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
  • Canberra City
Phone 1800 004 878 to book a free appointment