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Financial Need In A Family Provision Claim (WA)

In Western Australia, if a testator leaves an unjust will, an eligible claimant can make a Family Provision Claim for a larger portion of the deceased estate. Whether a claim will be successful depends on many factors, including whether the claimant can prove financial need. This article explains how to demonstrate financial need in a Family Provision Claim in Western Australia.

Family Provision Claims In Western Australia

The Family Provision Act 1972 provides redress for eligible claimants who receive inadequate provision in a will. An applicant files a Family Provision Claim hoping that the Supreme Court of Western Australia will award them a more substantial share of the deceased estate.

A claimant needs to establish certain elements before making a Family Provision Claim in Western Australia. The first requirement is that the claimant is an eligible applicant under the Family Provision Act. The second requirement is that the deceased has a moral responsibility to take care of the claimant, considering the size of the estate and the relative needs of other beneficiaries. Lastly, the claimant must provide compelling evidence of their financial need to make a Family Provision Claim in Western Australia.

How To Establish Financial Need

Establishing financial need can be a straightforward process. Someone unable to work (because of age, infirmity or disability) can readily demonstrate financial need. Claimants typically produce Centrelink documentation, medical reports, bank records and loan documents to establish financial need.

Even someone who appears to be financially comfortable can claim financial need. The claimant’s financial need is relative to their usual standard of living and current and future expenses. A claimant with a good income may have significant debts and living expenses and therefore can demonstrate financial need because their outgoings exceed their incomings.  The court also has more latitude when it comes to claims against large estates to allow provision for international travel, children’s private education and comfortable retirement. The court will consider these expenses reasonable if the claimant is accustomed to a higher standard of living and the estate can easily provide the claimant with a larger inheritance.

Time Limits For Family Provision Claims

A claimant needs to gather evidence of financial need without delay. In Western Australia, a claimant can only request further provision from a deceased estate in the six months after the grant of probate. The court can entertain a late claim if the claimant is not at fault for the delay. For instance, if the executor fails to notify the claimant of the testator’s death, the court may accept this as a reasonable cause for delay beyond the claimant’s control.

Case Study

The importance of establishing financial need was recently illustrated in Balla -V- Roberto Bei as Executor of the Estate of The Late Giovanni Bei [2020]. In this case, the Supreme Court of Western Australia heard a claim from two daughters who were left without provision from their father’s estate. The deceased left his relatively modest estate (less than $300,000) to be divided equally between his son and a friend he treated like an adopted daughter.

The case was complex despite the relatively small amounts at stake. The testator had left his deceased estate to worthy recipients. The deceased’s son was unable to work due to an acquired brain injury, and he had provided his father with funds from his injury compensation payment. The “adopted” daughter lived next door to the deceased in his final years and provided unpaid domestic support.

On the other hand, the claimants themselves had a compelling claim for provision from the estate. The claimants had previously worked without pay in the family business and provided their parents with personal care and financial assistance. The relationship between the father and daughters was initially close, and they only drifted apart after the father’s remarriage. The father’s new spouse was not a beneficiary of his final will, and she did not make a claim on the estate.

The daughters sought 20% and 30% of the estate, respectively. The testator’s son (as executor) did not object to this redistribution, so long as it did not come from his 50% of the estate. The testator’s “adopted” daughter argued that there should be no redistribution, as one of the daughters was not the testator’s biological child, and the daughters were not entitled to provision because of their recent estrangement from their father.

Each claimant was required to file an affidavit outlining their finances. The claimants specified their income, assets, costs and debts in these documents. They also outlined their health issues and asserted that they were experiencing financial need, relying on superannuation funds to meet their living expenses. The court found the claimants’ assertions of financial need credible on the basis of these affidavits. Ultimately the court decided to award the daughters half of the estate and divide the remaining half between the son and the “adopted” daughter. This case shows the significance of establishing financial need in a Family Provision Claim in Western Australia.

The success of a Family Provision Claim in Western Australia turns on the ability to substantiate financial need. The contested wills team at Armstrong Legal can advise you on establishing financial need. For more guidance or information, contact our friendly 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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