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:
- It involves economic considerations;
- 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.
- Need is a relative concept – entirely dependent upon the circumstances of each individual applicant and the value of the estate.
- There may be some consideration as to whether the claimant is unable to satisfy his or her financial requirements from their own resources.
- 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.
The Practice Direction issued by the Supreme Court of Queensland requires that the supporting affidavit filed with an Application for further provision must include details of the applicant’s assets and liabilities and the sources of their income.
It is critical that all information is put before the Court in support of an Application for further provision. If the Court does not have that information, aside from failing to comply with the practice direction, the Court will have no information upon which to base its assessment of need and whether the provision under the Will is adequate.
If you are unsure whether your financial circumstances will preclude you from bringing a claim – you should obtain legal advice from an Estates Disputes Lawyer. A lawyer who regularly practices estate litigation will be able to give you a proper assessment of whether you should bring your claim based on your financial circumstances.
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Note that the summary of “need” aspects comes from the case of Sadiq v NSW Trustee & Guardian  NSWSC 716, at 288. That case summarised some key aspects from other cases. The case can be found here: http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/nsw/NSWSC/2015/716.html