This is part 3 of what is to be a series about different types of potential claims against estates (see Part 1: Contesting a will or estate).

Family provision claims (also known as testator’s family maintenance) are about seeking a greater share of an estate, thereby overriding (in part) the terms of any will. The basis for such a claim is that the claimant has been left without “proper” provision for their “maintenance, education or advancement in life”.

There are many different scenarios where these types of disputes can arise, but some of the more typical examples are where:

  • A second wife/husband has received too much or too little compared with the children of a first marriage;
  • Children have been cut out or left out of a will (sometimes due to an estrangement);
  • Circumstances have changed greatly since the will was made, for example where the deceased had a new defacto partner;
  • The amount each child receives is out of proportion to their financial need or the strength of their relationship with the deceased; or where,
  • Much of the estate has been given to charity or other purposes, leaving an inadequate amount for the family;

The people who can claim, time limits, and the assets that can be claimed against vary state by state. In South Australia, the classes of potential claimants are limited to married & domestic partners (defactos and other life partners), former partners, children, grandchildren, and in some circumstances siblings, parents and stepchildren. As with most of our posts, this post deals with South Australian law only. For us, the relevant legislation is the Inheritance (Family Provision) Act 1972.

When will a claim succeed?
There is no formula for determining whether a claim will succeed, because what is “proper” depends upon all of the circumstances. The Court is concerned with the nature of the relationship between the deceased and the claimant, the claimant’s financial need, and the competing needs of the other beneficiaries of the estate.

Each case involves a balancing act between the moral claims and needs of the different beneficiaries of the estate. What the Court does not do is try to achieve equality or completely re-write the will, although sometimes it can appear that way.

In a contest between a long term spouse and children, the spouse will generally have the stronger moral claim. All else being equal, the Court will want to try to ensure that the spouse has somewhere to live and some money to cover future needs, even if that does reduce what the children might receive.

Between children, a child who has been dutiful and is in significant financial need will have a stronger moral claim than children who aren’t in financial need or who were not as close to the deceased.

In smaller estates where the deceased was unable to provide for everyone, greater weight will be given to the stronger claims and those with weaker claims may receive quite a small part of the estate or nothing at all. Larger estates can more readily accommodate weaker claims, but in situations where a potential claimant is asking for more on top of what is already substantial provision, the Court may not be as inclined to disturb the deceased’s wishes as set forth in the will.

Claims frequently succeed in circumstances where a spouse or child has been entirely cut out of the will, as it means that the moral claim has not been met at all. From the Court’s perspective the mere fact that that there is an estrangement or that a child is well-off does not necessarily mean that the child should receive nothing. It may just mean that the claim is weaker than it might otherwise be. Similarly, increasing someone’s provision from nothing to a tiny bit does not get rid of the potential claim, it just makes it slightly smaller.

In part 4 of this series I will discuss some of the procedure associated with making a family provision application.

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