The foundation of the court’s power to make family provision orders is found in s 57(2) of the Succession Act 2006 (NSW). Essentially, the court may make an order for the benefit of an eligible applicant for their ‘maintenance, education and advancement in life’ if the applicant has need and has not been adequately provided for by the deceased.

The categories of applicants are treated differently by the courts. Closer relatives such as spouses, de facto partners and natural children have less factors to overcome and therefore less to prove than more remote categories such as former spouses, grandchildren and members of the household of the deceased. All applicants must demonstrate at the very least that they have been left without adequate provision.

Section 59(1) of the Succession Act 2006 (NSW) sets out the additional factors requiring proof from the remoter categories. Essentially, there must be ‘factors warranting’ the making of the order for provision. Unless an applicant in the remoter categories can demonstrate the “factors warranting”, the court will not make an order for provision.

Up and until 1 January 2015 the Act does not provide for different treatment of different categories of applicant.

In assessing a claim for further provision, the court will exercise its discretion on the basis of the factors set out in s 91(4) of the Administration and Probate at 1958 (Vic), such as:

• the age of the applicant;

• the relationship of the applicant with the deceased;

• the nature and extent of the estate, and/or

• the financial and medical needs of the applicant.

From 1 January 2015 the court may make an order for the benefit of an eligible applicant for their “maintenance, education and advancement in life” if the deceased had a responsibility to provide adequate maintenance and support for the applicant has need and the applicant has not been adequately provided for by the deceased.

The categories of applicants are treated differently. Closer relatives such as spouses, de facto partners and minor children (or children with a disability) have less to overcome and therefore less to prove than more remote categories such as former spouses, grandchildren, registered carers and members of the household of the deceased.

All applicants must demonstrate at the very least that they have been left without adequate provision.

See Major concepts weighed and balanced by the courts.

The foundation of the court's power to make family provision orders is found in s 41 of the Succession Act 1981 (Qld). Essentially, the court may make an order for the benefit of an eligible applicant for their maintenance, education and advancement in life if the applicant has need and has not been adequately provided for by the deceased.

The categories of applicants are treated differently by the courts. Closer relatives such as spouses, and children have less factors to overcome and therefore less to prove than more remote categories such as dependants. All applicants must demonstrate at the very least that they have been left without adequate provision.

Section 41(1A) of the Succession Act 1981 (Qld) sets out an additional requirement for a dependant to succeed.

See Proof required by applicant.

The Act does not provide for different treatment of different categories of applicant. There are no factors set out in the Act that the court has to consider. The court considers the factors as set out in Vigolo v Bostin. Amongst other things,” the applicant’s financial position, the size and nature of the deceased’s estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims on his or her bounty.”

The factors include those set out under the notes on the other states above and include:

• the age of the applicant;

• the relationship of the applicant with the deceased;

• the nature and extent of the estate;

• the financial and medical needs of the applicant;

• the means of the applicant;

• the needs of the applicant at present and in old age;

• other persons who have a claim against the bounty of the testator.

See Major concepts weighed and balanced by the court.

Section 6(i) and (j)  of the Inheritance (Family Provision) Act 1972 (SA) sets out the additional factors required to be proved by parents and siblings in order to be entitled to make a claim for provision from a deceased’s estate. Claimants in either category must satisfy “the court that he cared for, or contributed to the maintenance of, the deceased person during his lifetime.”

See Proof required by applicant.

The Act does not provide for different treatment of different categories of applicant. If an applicant is an eligible applicant within the meaning of s 3A of the Testator’s Family Maintenance Act 1912 (Tas) the court will exercise its discretion on the basis of all relevant matters pertaining to the application, such as:

• the relationship of the applicant with the deceased;

• the nature and extent of the estate; and/or

• the means of the applicant.

See Major concepts weighed and balanced by the courts.

The foundation of the court's power to make family provision orders is found in s 7 of the Family Provision Act 1969 (ACT). Essentially the court may make an order for the benefit of an eligible applicant for their 'maintenance, education and advancement in life' if the applicant has need and has not been adequately provided for by the deceased.

The categories of applicants are treated differently by the courts. Closer relatives such as spouses, de facto partners and natural children have less factors to overcome and therefore less to prove than more remote categories such as former spouses, grandchildren and members of the household of the deceased. All applicants must demonstrate at the very least that they have been left without adequate provision.

Sections 7(2) – (4) of the Act set out the additional requirements for stepchildren, grandchildren and parents respectively to satisfy before they are eligible to make a claim.

See Proof required by each type of applicant.