Factors the Court Considers when Making an Order for Provision from a Deceased's Estate

Date: Nov 17, 2014
Document Type: Article

The Case Law states that the Court must not disregard the interests of other beneficiaries in determining a Plaintiff’s Application for provision from a deceased’s estate even in circumstances when those other beneficiaries have been given notice of the Plaintiff’s proceedings but have chosen not to make an Application themselves or participate in the proceedings.

When considering the appropriateness of making an Order for Provision the Court considers a number of factors including:-

  • the plaintiff’s financial position;
  • the size and nature of the deceased’s estate;
  • the relationship between the plaintiff and the deceased and other persons who have legitimate claims upon the deceased’s bounty.
  • the circumstances and needs of those other persons.

Such an assessment is necessary because of the inter-relation between “adequate provision” and “proper maintenance”.

The enquiry as to what is “adequate” directs its attention to the needs of the Plaintiff. 

The enquiry as to “what is proper” requires a consideration of all the circumstances of the case and in particular the size and nature of the estate and the needs of the other beneficiaries or potential beneficiaries.

A Court will not consider the propriety or inadequacy of any testamentary provision for a plaintiff in isolation from the resources and needs of the other claimants on the deceased’s bounty.

To speak with an experienced estate provision lawyer call us on 02 8268 4000.

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