Family Provision Claims: Financial Evidence

What a Family Provision Claim is

The relevant state or territory’s legislation governs the claim. It can arise where a will leaves too little or where intestacy rules produce inadequate provision. A challenge to testamentary capacity instead disputes the validity of the will.

NSW uses Chapter 3 of the Succession Act 2006. Victoria uses Part IV of the Administration and Probate Act 1958. Queensland uses Part 4 of the Succession Act 1981. Western Australia uses the Family Provision Act 1972. South Australia now uses Part 6 of the Succession Act 2023.

Other jurisdictions have their own statutes. Tasmania uses the Testator’s Family Maintenance Act 1912, the ACT uses the Family Provision Act 1969 and the Northern Territory uses the Family Provision Act 1970.

In Singer v Berghouse (1994) 181 CLR 201, the High Court described two questions. The court first assesses whether provision is inadequate for the applicant’s proper maintenance, education or advancement in life. If it is inadequate, the court determines what provision ought to be made. The High Court discusses this inquiry in Vigolo v Bostin. Apply the governing statute to the particular claim.

Under s 59 of the Succession Act 2006 (NSW), eligibility is the starting point. The court must also find inadequate provision for proper maintenance, education or advancement in life. For specified categories, factors warranting the application must exist. The court then decides whether to exercise its power and what provision to order. Being eligible does not establish entitlement to a payment.

Who Can Claim and Time Limits by State

Section 57 of the Succession Act 2006 (NSW) identifies eligible persons. Other states use their own definitions. The filing clock starts at different events across states. Record the death and grant details separately before calculating the deadline.

State	Eligible people	Ordinary filing limit and trigger
NSW	Spouse, de facto partner at death, child, former spouse, qualifying dependent grandchild or household member, and a person in a close personal relationship at death	12 months after death under s 58
Victoria	Spouses or domestic partners and children, with other relationship categories and conditions in s 90	Six months after the grant of probate or letters of administration under s 99
Queensland	Spouse, child including stepchild or adopted child, and a dependant within the statutory definition	Nine months after death under s 41(8)

In NSW, the dependent category requires both dependency and the specified grandchild or household connection. Former spouses, that dependent category and close-personal-relationship applicants also need factors warranting the application under s 59. A de facto partner living with the deceased in that relationship at death falls within s 57.

An executor can bring a personal claim if independently eligible, for example as the deceased’s child. Appointment as executor alone creates no eligibility. A personal claim also creates a conflict between the executor’s own interests and the administration role, which needs separate management.

Victoria’s Part IV provisions distinguish eligibility from entitlement to an order. Dependency and other category-specific conditions affect some applicants. Adult children remain eligible, with their capacity to provide for themselves affecting the amount. For relationship-specific conditions, see who can contest a will.

In Queensland, s 41 of the Succession Act 1981 permits an application where a spouse, child or dependant has inadequate provision for proper maintenance and support. Eligibility alone does not satisfy that test. Give the personal representative written notice within six months to address the distribution protection in s 44. Filing still has the separate nine-month limit. Read Part 4 of the Queensland Act.

WA lawyers must read s 7 of the Family Provision Act 1972 for eligible classes and the deadline. Section 7(2) measures six months from when the administrator becomes entitled to administer the estate in WA. The court can grant leave out of time.

The Inheritance (Family Provision) Act 1972 (SA) is repealed. For the current scheme, read s 115 for eligibility and s 118 for time limits in the Succession Act 2023. The ordinary limit is six months after the grant. Schedule 4 preserves proceedings already commenced under the repealed legislation.

Late applications involve a separate statutory discretion. In Victoria and SA, an extension application must precede final distribution. Preserve the claim within the ordinary period wherever possible.

Financial Evidence the Court Weighs

Financial evidence helps establish the claimant’s present resources, future needs and the competing demands on the estate. Section 60 of the Succession Act 2006 (NSW) connects that evidence with the court’s statutory assessment. Assemble the claimant’s income and expenditure records alongside assets, debts and evidence of housing or health needs. Include earning capacity and support received from others.

An estate inventory alone gives an incomplete picture if it omits liabilities or later changes in value. Compare the net estate available for distribution with the claimant’s proposed provision and the circumstances of other beneficiaries. A large estate and a small estate can produce different outcomes for the same claimed need.

The NSW s 60 considerations also cover the relationship and the deceased’s responsibilities towards the applicant and others. Relevant contributions, provision already made and the applicant’s character or conduct can affect the assessment. Connect each disputed transaction to a relevant consideration. A total of transfers alone does not answer whether further provision is appropriate.

Section 100 of the NSW Act addresses statements made by a deceased person during their lifetime. It permits evidence of facts the deceased could have given admissible direct oral evidence about, subject to its conditions. An oral statement ordinarily requires direct testimony from someone who heard or otherwise perceived it. The court can order otherwise, and separate rules address oral evidence given in legal proceedings.

For a statement in a document, preserve the document. A copy requires leave and authentication acceptable to the court. Related documents can be required, and failure to produce them can result in exclusion. The court assesses the statement’s weight from its circumstances and accuracy.

Preserve the complete source record and identify the speaker or author before deciding how to tender the statement. A deceased person’s explanation does not become conclusive merely because it is written down.

Lifetime gifts show what support the deceased already provided and how assets left the estate before death. In NSW, certain transactions can bring property within the notional estate provisions. A transfer does not automatically qualify. Identify its timing and recipients, then assess the statutory conditions described in our guide to notional estate.

Using Bank Statements in Estate Claims

The deceased’s bank statements show lifetime payments to beneficiaries and changes in available funds. The claimant’s statements show income received and expenditure actually paid. Read both sets against the affidavits so that the financial account of the dispute is consistent.

For example, a hypothetical claimant’s budget lists rent of $2,000 each month. Regular rent payments support that item, while payments from a relative explain how the claimant meets it. That support needs to appear in the financial account alongside the expense.

Where suspected elder financial abuse has reduced the estate, build a chronology of pre-death cash withdrawals and transfers. Record each transaction’s amount and description with its source page. Match transfers to receiving accounts where statements are available. Compare the movements with authority documents, instructions and evidence of who controlled the account.

A cash withdrawal establishes money leaving the account. Identifying who received or used the cash requires further evidence. Keep recovery allegations distinct from the claimant’s request for provision. Our guide to executor fraud covers suspected taking of estate money by an executor.

FinTrace saves estate lawyers and forensic accountants hours of statement review by consolidating PDF statements into a searchable Excel ledger and a readable findings report. Suspicious transactions and unusual transfers are clearly flagged. Each finding cites the source PDF filename and page, putting its supporting evidence directly at hand.

Costs and Settlement

Family provision costs depend on court orders and the conduct of the case. In NSW, s 99 permits payment from the estate or notional estate. Claimants must budget for their own legal work and the risk of an adverse costs order. Payment from the estate is not automatic.

The Judicial Commission’s costs guidance explains the court’s discretion and an executor’s usual indemnity for proper conduct. Disproportionate litigation costs reduce what remains available to beneficiaries and for provision.

Mediation lets the parties negotiate provision and costs before a contested hearing. The NSW scheme directs claims towards mediation, where a shared financial picture helps the parties assess settlement. A settlement can address payment timing and the estate’s remaining administration as well as the amount.

Under the NSW Probate and Family Provision List practice note, the first directions date follows the 28-day period after filing. The court then sets an evidence timetable and addresses mediation. If mediation fails, further directions prepare the matter for hearing.

The practice note sets these stages without a universal filing-to-mediation or hearing duration. Missing statements, disputed valuations, additional claimants and contested transactions extend preparation. Use the court’s directions and available hearing dates to set the matter’s timetable.

A NSW settlement that releases family-provision rights engages s 95 of the Succession Act 2006. The release has effect only with court approval and while that approval remains in force. A signed settlement term alone does not supply that statutory approval.

For approval, put the release and its surrounding agreement before the court with material addressing the releasing party’s circumstances. The court considers advantage to that party, prudence and whether the agreement is fair and reasonable. It also considers independent advice and the party’s consideration of it. Identify the rights and estate interests released, the benefit received and the advice supporting the decision. Preserve the approval order with the settlement documents.

FinTrace performs the statement-analysis stage at a fraction of the cost of manual review or engaging a forensic accountant for that work. Its per-matter quote combines a fixed base fee with a per-page component based on scope. Accountants also use the service to free time for interpretation and their wider forensic work.

Defending a Claim as Executor

An executor defending a claim must preserve estate assets and present an accurate account of the estate’s value and liabilities. Give required notice to eligible persons and beneficiaries. The NSW practice note addresses estate affidavits and notice compliance so affected people can participate.

Reconcile opening assets with receipts, administration payments and any distributions. Separate the estate’s liabilities from estimated litigation costs. Where beneficiaries assert competing needs, obtain evidence of those circumstances. Our guide to beneficiaries’ rights explains their access to estate information.

Test the claimant’s financial disclosure against their own records. Compare stated income with recurring deposits and claimed debts with loan statements. Identify transfers between the claimant’s accounts before treating every deposit as income. Ask for explanations supported by records where spending or assets contradict an affidavit.

An executor acting properly usually receives an indemnity from the estate for reasonable defence costs. Improper conduct, unreasonable resistance or litigation pursued for personal interests can put that indemnity at risk and lead to personal costs liability.

Before mediation, prepare a net-estate calculation and a transaction schedule for each disputed financial issue. Put the evidence beside the competing claims so the executor can assess a settlement against what the estate can actually pay.