The family provision jurisdiction essentially weighs and balances the concept of freedom of testamentary disposition or the intestacy rules with the factors set out in the legislation in order to determine whether or not an applicant has been left with adequate and proper provision by a deceased’s estate. It is essential that a practitioner understands the legislation and how the court approaches this task.

Unless an applicant can demonstrate that they have been left without adequate and/or proper provision and have unmet needs for 'maintenance, education and advancement in life' they cannot succeed.

An applicant’s set of needs vary greatly depending on their age, health, the stage of life that they are currently in or are approaching, and their own ability to provide for themselves. If they are able to support themselves and provide for their future then they may not be able to demonstrate a need. 

In some cases a person may have been ‘adequately’ provided for but it cannot be said that they have been ‘properly’ provided for. The word ‘proper’ connotes something different to the word ‘adequate’. What may be ‘adequate’ to meet the bare essential needs of an applicant may be held to be improper if the deceased was wealthy and could have and should have provided something more than basic or ‘adequate’ provision. Even if the court determines that an applicant has been inadequately provided for, the court may still not make an order for provision for the applicant if it is a small estate and there are strong competing claims by the chosen beneficiaries.

The entire jurisdiction is discretionary. Even if an applicant is able to demonstrate need and any other factor under the legislation that is required to be demonstrated by that particular applicant, the court always retains a discretion regarding whether to make an order for provision or not and the amount of provision to make.

The court will determine the needs of the applicant and the adequacy of any provision made for the applicant by the deceased at the time that the court hears and determines the matter, not as at the date of death or as at the date that the deceased made their will. Consequently the court can consider other facts and circumstances that may have arisen that could not have been considered by the deceased.

See Major concepts weighed and balanced by the courts.

See Other factors to be taken into account by the court.