Family provisions arise from claims against a deceased persons estate. The Supreme Court makes orders as to whether the family provision will occur and may then alter any existing will and/or succession inheritance. These reasonings and decisions are highly discretionary.

The major justifications for Courts discretionary powers to intervene and make orders which change the legal effects of wills are familial obligation and moral duty (Vigolo v Bostin HCA 11 at 10). For this reason, the courts may have regard to community standards.

To make a family provision order, the Supreme Court must be satisfied that the provisions of section 59 of The Succession Act 2006 are met.

Firstly, there must be an eligible person. Secondly, there will be a consideration of whether there is adequate provision regarding the proper maintenance, education or advancement in life for the person who will benefit from the order. Such provision may be from the will of the deceased person, intestacy, (dying without a will in place and inheritance occurring based on The Succession Act) or both.


Time of application

The application must be made no later than 12 months after the date of death of the deceased person, unless there is sufficient cause shown to which the Court orders, or parties within the proceedings consent to the application not being made in time (The Succession Act 2006 s. 58).


Proper maintenance, education or advancement in life 

In the case of Singer v Berghouse (1994) 181 CLR 201 at 209-210, Court Justice Mason, and Justices Deane and McHugh provided that a test for proper maintenance, education or advancement in life involvedan assessment of whether the distribution made was adequate or provided to the applicant maintenance which aligns with the applicant’s financial position, and, the size and type of the deceased estate, while also taking into account the relationship of the deceased and applicant.


Eligible persons

Section 57 of the Succession Act 2006 provides that eligible persons that may apply to the Supreme Court for family provision orders regarding the estate of a deceased person include the following.

A person who was:

  • the spouse of the deceased person at the time of the deceased person’s death.
  • in a de facto relationship with the deceased person at their time of death.
  • a child of the deceased person.
  • a former spouse of the deceased person.
    • a person:
      • who was at any time, wholly or partly dependant on the deceased person and
      • that is a grandchild of the deceased person, or, at any time, was a member of the household of which the deceased person was a member.
    • and/or living in a close personal relationship with the deceased person until their death.


Spouses in family provisions

In Luciano v Rosenbloom [1985] 2 NSWLR 65 at 69-70, it was held that the duty of a testator involved consideration of the extent of the testators’ assets, to ensure; that their widow is secure in their home, has income which is sufficient to permit them to live the life they were accustomed to during the testators/deceased life, and providing the widow with funds, allowing them to meet unexpected expenses.

However, in Marshall v Carruthers [2002] NSWCA 47 at 72, it was discussed that this may not align with the current discretion of the Court. In this case, it was held that the provision of the home, expenses, and the provision/support of the life a widow is accustomed to may only be a strong consideration for those widows which were financially dependent on the deceased during their life, supported raising the children and/or the amassing of their fortune.

Following this, in O’Loughlin v O’Loughlin [2003] NSWCA 99 at 15 and 20 it was accepted that a deceased has a duty to provide for their widow after their death and, where there is a need of the widow, and there are funds to provide for her, the Court shall ordinarily give preference to the widow over the children of the deceased, if the children are adult and able-bodied. This could also lead to family provisions which permit maintaining the needs and extravagant lifestyle of a widow, of which the widow was accustomed to during the testators/deceased’s’ person’s life (as this is what occurred in this case).


Children and Adult Children in Family Provisions

In the case of Page v Hull-Moody [2020] NSWSC 411 at 176, Justice Hallen provided a short list of examples of children and how they might be supported. For example, children may be minor or adult children (18 and over) and able bodied and make a family provision claim. Children considered to have claim and preference also included, those suffering hard times, who were dependent on the deceased, with low or limited income, and/or of ill-health.


Matters to be considered by the Court

Section 60 of the Succession Act 2006 provides the matters to be considered by the Court. Summarised, these include:

  • Familial and other relationships, and the nature, obligations, and duration of those relationships.
  • The nature and total of the estate of the deceased, including liabilities or charges,
  • The financial resources and financial needs (present and future).
  • If the applicant is cohabiting with another person, the financial resources of the person they are cohabitating with.
  • Any physical, intellectual or mental disabilities of the applicant.
  • The age of the applicant.
  • Any contributions made by the applicant toward the acquisition (obtaining). conservation (maintenance) and improvement of the estate of the deceased person or their welfare, or the welfare of the deceased person’s family.
  • Any evidence of testamentary intention (intention regarding will and how estate will be distributed and managed) of the deceased person (including evidence of statements).
  • The basis of any maintenance from the deceased person to the applicant before the deceased person’s death.
  • Whether other people can support the applicant.
  • The character and conduct of the applicant before and after the deceased person’s death.
  • Any relevant or applicable Aboriginal or Torres Strait Islander Customary Law, and/or
  • Other matters the Court considers relevant.

If you require legal advice in any Wills and Estate Law and/or  Family Law matters or if you wish to discuss family provisions, our highly experienced and qualified Family Lawyers at Genesis Edge can help you. Please do not hesitate to contact us on 1300 559 888 or fill out the enquiry form here.