When a person believes that they have not been adequately provided for by a loved one’s will, and makes a claim seeking more, the Court’s power to award them further provision from the estate is limited to what the person actually requires for their ‘proper maintenance and support’.
Accordingly, the need for a claimant to demonstrate ‘financial need’ is crucial to success in these claims, particularly where the claimant is an adult child, where the Court must also consider the degree to which that child can support themselves. This requires a close examination of the person’s financial situation, rather than mere speculation or assertion as to what their need may be.
For this reason, any person seeking family provision from an estate must provide sufficient evidence of their financial and personal circumstances in order to demonstrate ‘financial need’. The extent to which ‘financial need’ must be established is relative to each case and depends on a number of factors, not the least of which is the size of the estate and the competing needs of the beneficiaries.
Case update: Re Janson; Gash v Ruzicka
The recent case of Re Janson; Gash v Ruzicka demonstrates the Court’s inability to award family provision from an estate on speculation of financial need alone.
In this case, the deceased’s daughter was unsuccessful at trial at obtaining further provision from her father’s estate, as she was unwilling or unable to provide evidence of her assets, liabilities and expenditure at trial, and therefore did not establish her financial need. This was despite the fact that it was clear that the daughter was not wealthy and it had already been conceded by the defendant that she had not been adequately provided for from the estate, meaning the only question before the Court was ‘how much’ she should receive.
Therefore, due to the defendant’s concession, the Court held off on dismissing the application altogether, and instead allowed the daughter another opportunity to file evidence of her financial need.
This case is a timely reminder that the onus of proof in family provision claims remains with the claimant and that unless a degree of financial need can be evidenced, it is unlikely that the claimant will succeed. It is insufficient for a person to simply assert financial need, without also providing information and documentation to evidence the extent of their need.
The Court’s discretionary power to amend a will is limited to the ability to award family provision for an eligible person’s ‘proper maintenance and support’. It does not extend to ensuring all children are treated equally, or compensating a person for past slights by the deceased.
If a willmaker excludes or makes limited provision for an immediate family member, whether they can bring a successful family provision claim against the willmaker’s estate will frequently turn on their own financial circumstances (and willingness to disclose these).
The lessons from Re Janson are useful for anyone seeking to bring or defend a claim for family provision, but also for anyone who is making their will and is worried about whether it might be challenged by a disgruntled family member.
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Re Janson; Gash v Ruzicka:  VSC 449