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Financial Need In A Family Provision Claim (NSW)

In New South Wales, the Supreme Court assesses Family Provision Claims against a number of criteria. One of the main criteria is the financial need of the claimant. It is insufficient for a claimant to simply assert that they are experiencing financial need. Anyone who intends to make a Family Provision Claim in NSW should make sure that they can account for their finances, income and expenses, and that in totality, these circumstances demonstrate a need for greater financial provision. This article explores the importance of proving financial need in a Family Provision Claim in NSW.

Family Provision Claims In NSW

When a person believes that they have been unfairly provided for in a will, they can contest the will. This is known in NSW as making a Family Provision Claim against the deceased estate. A claimant needs to establish that, under the will, there is inadequate provision for their proper maintenance, education and advancement.

The Supreme Court has the power to afford the claimant further provision from the estate, depending on a number of variables. The court 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 in order for the court to determine the question of adequate provision.

The strength of a claim will partly depend on the size of the estate and the competing needs of the other claimants and existing beneficiaries.

Financial Need

Under the Succession Act 2006, the Supreme Court may only award provision in an amount that is commensurate with the claimant’s proper maintenance and support. A claimant must gather sufficient evidence of their personal financial circumstances in order to establish financial need. This means making frank financial disclosures to the court relating their assets, financial resources, sources of income and liabilities.

The court will rely heavily on independent evidence of finances, such as bank statements. A claimant who is financially dependent on another person, such as a spouse, will probably have to provide information to the court relating to the spouse’s financial circumstances. Failing to disclose this information may impact the court’s ability to assess a claim. It is best to consult a solicitor if there is any confusion over what is relevant to financial need in a Family Provision Claim in NSW.

Financial need is both objective (to measure whether the claimant can meet their daily needs) and also always relative (to measure the competing needs of different claimants to an estate). This is particularly true of adult children of the testator. The court typically considers adult children to no longer be dependents of the deceased as they are able to support themselves. For instance, if a parent leaves her estate to her children, each of whom is experiencing similar levels of financial need, then 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 would be reasonable, as it was reflective of one child’s greater need.

Case Study

In the case of Stone v Stone [2019], the Supreme Court emphasised the importance of a claimant proving financial need in a Family Provision Claim. In this case, two siblings were arguing over the division of their mother’s estate. The deceased left her estate to her son and made no provision in her will for her estranged daughter. The daughter’s claim contained a brief and unsupported reference to her financial need, with no details on her income and liabilities. She also disclosed that she was in a de facto relationship, but provided no details of her de facto partner’s financial circumstances.

The court directed the claimant to provide additional material on this matter before the hearing, but the daughter failed to comply. The court found that, in the circumstances, they could not make a determination on financial need at all. 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. Unless the claimant can evidence a degree of financial need, their claim is unlikely to be successful. This case also emphasises the importance of meeting court deadlines. If a claimant is ordered to provide evidence of financial need, then if the claimant does not comply within the stated time frame, then the court may refuse to admit this evidence at a later date.

The Armstrong Legal NSW contested wills team can help you establish your financial need in a Family Provision Claim. Please contact the team on 1300 038 223 for any advice or guidance in making a claim against a deceased estate.

Dr Nicola Bowes

This article was written by Dr Nicola Bowes

Dr Nicola Bowes holds a Bachelor of Arts with first class honours from the University of Tasmania, a Bachelor of Laws with first class honours from the Queensland University of Technology, and a PhD from The University of Queensland. After a decade working in higher education, Nicola joined Armstrong Legal in 2020.

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