Written by Sam Pendergast, Senior Associate

Imagine you're one of three children.

Your father passed away 10 years ago and left his entire estate to your mother. Recently, your mother also passed away. When you review her Will, you discover that she has left her estate equally to your two siblings and made no provision for you at all.

Most people would view this as an unfair outcome and assume it is the type of situation where a Will should be challenged. In some cases, they would be right. However, under Victorian law, family provision claims are not determined by whether siblings receive equal shares of an estate. To bring a successful claim, a claimant must generally be able to demonstrate a genuine financial need.

If you have been left out of a Will, or believe that inadequate provision has been made for you, it is important to seek legal advice as soon as possible, as strict time limits apply. The experienced team at Maddens Lawyers can help you understand your rights and assess whether you may have a valid claim against a deceased estate.

Family provision claims are about need, not equality

One of the most common misconceptions surrounding estate disputes is that children are automatically entitled to receive an equal share of their parent's estate.

This is not the case.

The Court’s role is not to decide whether a Will is “fair” in a general sense, but rather to consider whether the deceased had a moral responsibility to make adequate provision for an eligible person.

Why financial needs matter

Going back to the example above, imagine you are financially secure. You are a successful businessperson with a strong income, healthy superannuation, own your own home and perhaps also own an investment property. Meanwhile, your siblings survive on pension income and rent their homes. It may be that your mother’s decision to exclude you from her Will was justified and, in these circumstances, you may have some difficulty convincing the court that provision should be made for you from your mother’s estate.

Alternatively, let’s say your mother thought you were in a strong financial position whereas in reality, you carried significant debt, and your income was less than your mother understood. It may be that you do have grounds to bring a claim for provision.

These hypotheticals show that financial need is not a hard and fast concept. In fact, it is inherently difficult to define when an argument for financial need can be justified and when it might fail.

Every claim depends on its own unique facts, including a claimant’s financial position, health, earning capacity, responsibilities and future needs.

If you are unsure whether your circumstances justify a claim, speaking with our experienced Will dispute lawyers can provide clarity.

How do Victorian courts assess financial need?

The Courts have grappled with this question for decades and in published decisions, judges have produced some useful guidelines for claimants to consider.

For example, in the 2018 Victorian Court of Appeal decision (Davison v Kempson) the Court suggested financial need might go beyond bare survival:

[financial need is] … a relative concept that has to be considered in the circumstances of each case. It is not confined to economic need. If circumstances permit, a testator should go beyond merely providing for the bare necessities of life.

This confirms that financial need is assessed in the context of each claimant’s broader circumstances rather than according to a strict formula.

In the same decision, the Court included a reference to community perceptions as to how a ‘wise and just testator’ might bequeath their estate in the relevant circumstances.

In deciding what is adequate and proper, the Court’s discretion, while broad, is to be exercised carefully and conservatively according to prevailing community perceptions of the provision that would be made by a wise and just testator.

These principles continue to influence how courts assess whether adequate provision has been made from an estate.

Adequate and proper provision depends on the individual

As far back as the 1960s, the Court identified the difficulty in interpreting words such as ‘adequate’ and ‘proper’ given they are not absolute concepts. The Courts highlighted that to determine whether provision made for somebody was adequate would require a full analysis of the circumstances relevant to their claim.

‘Adequate’ and ‘proper’ in particular must be considered as words which must always be relative. The ‘proper’ maintenance and support of a son claiming a statutory provision must be relative to his age, sex, condition and mode of life and situation generally. What is ‘adequate’ must be relative not only to his needs but to his own capacity and resources for meeting them.
(Pontifical Society for Propagation of Faith v Scales (1962) 107 CLR 9, 19).

No two family provision claims are exactly the same, which is why obtaining tailored legal advice is so important.

At Maddens Lawyers, our team regularly assists clients who have been excluded from a Will or who believe the provision they have received is inadequate. We provide clear advice about your prospects of success and the practical considerations involved in pursuing a claim.

Speak with Maddens Lawyers about disputing a Will today

If you have been left out of a Will, received less than you expected, or believe inadequate provision has been made for your proper maintenance and support, you may have grounds to make a family provision claim.

The experienced team at Maddens Lawyers can assess your circumstances, explain your rights and guide you through the necessary factors to consider before making a decision.

We understand that Will disputes often arise during an already emotional time. Our lawyers provide compassionate, practical guidance and will work with you to achieve the best possible outcome. If we determine you do have a claim for provision, we will discuss advancing your claim on a no-win, no-fee basis.

Contact Maddens Lawyers today for an obligation free discussion.