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Financial Need In A Family Provision Claim (Qld)

In Queensland, the Supreme Court evaluates a Family Provision Claim against established criteria. One of the most important factors in this type of case is the financial need of the claimant. In order for the court to decide whether a claimant has received adequate provision, the claimant must produce compelling factual evidence of their financial circumstances. This article explains the importance of establishing financial need in a Family Provision Claim in Queensland.

Family Provision Claims In QLD

No one can interfere with a competent testator’s right to draft a will as they see fit. However, if a testator in Queensland has a moral responsibility to provide for someone and fails to do so in his or her will, then the overlooked person has legal recourse. There is provision in the Succession Act 1981 for a claimant to make a Family Provision Claim in the hope that the court will order a redistribution of the deceased estate.

Amongst other criteria, a Family Provision Claimant needs to prove to the court that they have not already received sufficient provision for their maintenance and advancement in life. The court will not automatically accept that a claimant has a right to provision, even a close relative of the deceased. For instance, the court starts with an assumption that adult children are able to provide for themselves.

Financial Need In A Family Provision Claim

One of the key elements of successfully contesting a will is establishing the claimant’s financial need. The claimant does not need to be destitute, as the size of the estate and existence of other claims against the estate will factor into the court’s deliberations. The principle of financial need is relative. Substantial provision can be made for a relatively wealthy claimant from a large estate to enable them to meet the standard of living to which they are accustomed. The court will typically take a wider approach with claims against a larger estate. This may include provision for a contingent financial need, such as a safety net against future ill health or misfortune, assistance with superannuation or a modest supplement to the claimant’s lifetime income.

In every case, the court will assess whether the testator has provided adequate maintenance and support relative to the claimant’s age, health, mode of living and general financial circumstances. A claimant will be considered to have a particular financial need if they have:

  • Poor health or physical disability that makes it difficult to hold employment;
  • Mental infirmity or disability;
  • Difficulty supporting themselves and dependents;
  • Educational needs; or
  • Insecure employment.

For instance, in the case Stewart v Stewart [2015], the Supreme Court of Queensland considered the claim of a son against his father’s deceased estate, which included assets worth over two million dollars. The testator had promised to provide for his son but left no provision in his will for his son’s proper maintenance and welfare. The claimant was able to establish “dire” financial need in his Family Provision Claim. He suffers from several mental illnesses, including ongoing posttraumatic stress disorder from his service as a police officer. The claimant has two dependent children. He had a disability pension, but it did not meet his expenses and he has accrued substantial debt. At the time of the claim, he was homeless and unable to support himself and his two dependent children. The court found the claimant’s case to be highly persuasive and ordered that the son receive $850,000 from the estate.

Adequacy in this context is relative as it depends on the claimant’s financial need and their resources and capacity to meet their needs. In the case of Vigolo v Bostin [2005], the High Court reiterated that maintenance might imply either a continuation of the claimant’s standard of living, or provision above this sufficiency.

The onus is on the claimant to prove their need on the balance of probabilities.

The court will only consider substantiated facts, so it is important that a claimant is pro-active in presenting evidence of their financial need in a Family Provision Claim. This includes proof of all liabilities, financial resources, assets, and sources of income. The court will give greater credence to actual proof of financial need, such as bank statements or loan documents. It may also be necessary to provide financial details of a de facto partner or spouse. The court may decide that it is impossible to assess a claim if the claimant fails to disclose any of this information.

The success of a Family Provision Claim frequently turns on the claimant’s financial circumstances, and their willingness to disclose these facts. The contested wills team at Armstrong Legal can answer any questions you have about establishing financial need in a Family Provision Claim in Queensland. For more guidance or information, please do not hesitate to contact our team on 1300 038 223.

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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