In New South Wales, a child of a deceased has standing to apply for a family provision order

Under the Succession Act 2006 (NSW), a child (including an adult child) of a deceased person is considered an “eligible person” and therefore has the legal standing to apply to the Court for a family provision order.

Because a child falls within this category, they are not required to prove that there are “factors warranting” the making of the application. Instead, a child must establish two key matters.

First, the child must show that, in light of all the circumstances of their case (past and present), the deceased’s will has failed to make adequate provision for their proper maintenance, education, or advancement in life.

Second, if the Court finds that adequate provision has not been made, it must then determine what provision, if any, should be ordered from the estate for the applicant’s maintenance, education, or advancement in life, based on the facts known at the time the order is made.

In practical terms, this means that a child seeking a family provision order must demonstrate that, when viewed from a present-day perspective, the deceased’s estate has not provided them with adequate provision for their proper maintenance, education, and advancement in life, and that further provision ought to be made.

The terms “adequate” and “proper”, as used in the legislation, must be interpreted in the context of the particular circumstances of each case. Generally speaking:

• “Adequate” relates to the amount of provision made; and
• “Proper” concerns the appropriate standard of maintenance, education, and advancement in life.

Both concepts require the Court to assess the applicant’s circumstances in the context of the deceased’s situation and contemporary community standards.

When determining whether further provision should be made, the Court will generally attempt to place itself in the position of the deceased and consider what the deceased ought to have done in the circumstances. In doing so, the Court treats the deceased as a wise and just person, rather than one acting out of sentiment or poor judgment, while also taking into account present social conditions and standards.

In assessing an application, the Court may consider a range of factors, including:

• the nature of the family or other relationship between the applicant and the deceased;
• the obligations or responsibilities the deceased had to the applicant and to others;
• the size of the deceased’s net estate;
• the applicant’s financial resources, earning capacity, and present and future financial needs, as well as those of their spouse or partner;
• whether the applicant has any disability;
• the applicant’s age;
• any contributions (financial or otherwise) the applicant made to the deceased’s estate or welfare;
• any provision the deceased made for the applicant during their lifetime or through their estate;
• evidence of the deceased’s testamentary intentions, including statements made by the deceased;
• whether the applicant was being wholly or partly maintained by the deceased before their death;
• whether another person has a legal responsibility to support the applicant;
• the applicant’s character and conduct before and after the deceased’s death;
• any exposure of the applicant to relevant Aboriginal or Torres Strait Islander customary law; and
• any other matter the Court considers relevant.