Family Provision Application: How do I show I need more from the estate?

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As discussed in our earlier blog, “Contesting a Will, Part One: Family Provision Application”, if you bring a Family Provision Application you must prove that you need further provision from the estate to meet the costs of your proper maintenance and support.  So what factors a relevant and what does ‘proper maintenance and support’ mean?

Is your entitlement reasonable?

The Court will have regard to a range of factors when considering whether the provision you are to receive from the estate (if any) is reasonable in the circumstances, including:

  • Size and extent of estate (ie. value and location of the assets and liabilities of the estate);
  • Your need for support;
  • The nature of your relationship with the deceased; and
  • Any other competing claims against the estate by other beneficiaries.

What does ‘proper maintenance and support’ mean?

The Court will consider your individual circumstances when assessing whether you have received adequate provision for your proper maintenance and support.  The Court has established what it considers relevant to the ‘proper maintenance and support’ of a person over many years of case law.  These factors include:

  • The value of any entitlement you are to receive from the estate (if any).
  • Your financial circumstances.
  • Your needs having regard to:
    • Your income and income earning capacity;
    • Whether or not you are being supported by a spouse;
    • Any circumstances likely to affect the support from your spouse;
    • Whether you have dependants, including minor children, and whether those dependants have any special care needs;
    • Your health.
  • Support, maintenance and/or assistance provided to you by the deceased during their lifetime.
  • Any contributions you have made to increasing or preserving the estate.
  • The lifestyle which you have historically enjoyed, and whether the deceased had any influence on your lifestyle.

Want to talk about your options?

It is important for you to remember that there are prescribed time limits within which you must bring your claim against the estate.

Contact one of our succession law team members today and we can sit down to discuss your circumstances and what we can help you achieve.

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The content published in this Blog is in the form of academic papers and the opinions expressed herein are generalised. The information provided is for educational purposes, not specific legal advice.

The application of any principles referred to can alter from case to case and accordingly you should seek independent legal advice in respect of your individual circumstances.

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