What are the Court’s considerations for eligibility in a Family Provision Claim?

If you have been left out of a Will, or given a smaller provision than expected, you may be able to bring what is known as a family provision claim. A family provision claim refers to the contesting of the Will of a deceased person, on the grounds that they failed to make proper and adequate provision for someone whom they had a moral obligation to provide for.

The New South Wales Supreme Court has recently handed down a decision in Dimos v Burndred [2024] NSWSC 434 which considers this type of claim, brought by an adult son of the deceased.

Am I eligible?

“Eligible persons” may apply to the Court for a provision order, though the criteria for eligible persons differs between each State and Territory. Generally, eligible people include partners, children, and dependents. The definition of an eligible person sometimes also includes ex-partners, grandchildren, or stepchildren of the deceased. For example, the eligible persons to bring a claim can be found in:

• Sections 57 and 59 of the Succession Act 2006 for NSW
• Sections 7 and 8 of the Family Provision Act 1969 for the ACT
• Section 91 of the Administration and Probate Act 1958 for Victoria
• Section 41 of the Succession Act 1981 for Queensland

In addition to eligibility criteria, there are also time limitations to consider when bringing a family provision claim. However, this time limit also differs between each State and Territory. In New South Wales, a family provision claim must be filed within 12 months from the death of the deceased. Whereas, in the Australian Capital Territory a family provision claim must be filed within 6 months from Probate being granted. There are also some circumstances where the court may grant an extension of time to allow a person to make an application outside of this time limit.

After eligibility is established, it is considered whether or not adequate provision for proper maintenance, education, or advancement in life was made for the applicant.

What does the court consider?

If a person is considered eligible to make a family provision claim, they must then prove the deceased had a moral obligation to provide for them, and that adequate and proper provision has not been made. This is a discretionary matter decided by the Court, and can take into consideration various elements, including:

• The relationship between the applicant and the deceased
• The nature and extent of obligations or responsibilities owed to the applicant
• The nature and extent of the estate
• The financial circumstances of the applicant and any other beneficiaries
• The needs of the applicant
• The adequacy of provision made in the Will for the applicant
• The testamentary intentions of the deceased

Dimos v Burndred [2024] NSWSC 434

In the recent case of Dimos v Burndred [2024] NSWSC 434, the Court considered a claim for further provision by an adult son of the deceased, Anthony. The deceased died in 2022, leaving her estate to her three children. The Will included the adjustment of Anthony’s share to repay a loan from his sister. Though this loan was disputed by the siblings, the Court ultimately concluded that the Will be constructed to give effect to the testator’s intention, by reducing Anthony’s share and increasing the daughters share by $198,150 (the sum of the loan).

In considering the sons claim for further provision, the Court stated that there is “no doubt” that Anthony is an eligible person, and that the application was brought within the time limits. As such, the Court considered whether there was ‘adequate provision’ for Anthony through the Will. In making this decision, the Court focused on Anthony’s financial position and the competing financial position of his sister. The Court criticised Anthony in providing “incomplete, inaccurate and out of date information” regarding his financial circumstances, and ultimately dismissed his family provision claim, finding that he did not demonstrate that his mother failed to provide adequate provision.

How can we help?

If you think you might be eligible to make a family provision claim, you should seek professional legal advice as soon as possible. Our estate dispute specialists in the Private Wealth Law team at Chamberlains can assist you.