Wills and Estates: Why are my finances relevant to my estate claim?

It can feel very unfair if you have been left out of a Will or not received as much as you thought you might. Unfortunately, fairness is not a factor that is taken into account.

If you are a surviving spouse, child (including step-child or adopted child) or other child being maintained by the deceased at death, you can bring a claim for what is called “further provision” from the estate. When you make your claim, you are saying to the Court that you have not received enough from the estate (relative to your needs) and ask that you receive further provision.

When the Court considers whether the amount you are to receive from the Will is adequate for your adequate and proper maintenance and support, the Court must make an assessment of your financial circumstances. It is for that reason that your financial position is relevant to your claim.

If you are unable to establish a “need” then it is likely that your claim will fail. You don’t have to be on hard times, though, to establish that you have a need for further support.

The Courts have made a number of comments about what “need” means:

1. It involves economic considerations;
2. In order to assess what the proper level of maintenance is, there must be a consideration of the applicant’s needs – these can be present and future needs, including the need to guard against unforeseen contingencies.
3. Need is a relative concept – entirely dependent upon the circumstances of each individual applicant and the value of the estate.
4. There may be some consideration as to whether the claimant is unable to satisfy his or her financial requirements from their own resources.
5. It “is not to be decided in a vacuum, or by looking simply to the question whether the applicant has enough upon which to survive or live comfortably”. The inquiry is not confined only to the material circumstances of the applicant. The whole of the context must be examined.