When will an adult child successfully make a family provision claim?

This article assumes you have read our earlier article dealing with family provision claims by children generally.

Whether an adult child has received adequate and proper provision from a deceased parent’s estate will always depend on the particular circumstances of the case. However, courts have identified a number of recurring considerations that commonly arise when assessing claims brought by adult children.

Key considerations in adult child claims

In determining whether provision, or further provision, should be made, the Court will typically consider matters including the following:

• The quality, duration and conduct of the relationship after childhood is often critical.
• The community does not generally expect parents to provide adult children with an unencumbered home, or the means to acquire one. However, where an estate is substantial and the relationship justifies it, such an obligation may arise.
• Ordinarily, parents are not expected to support adult children for life or into retirement, particularly where the adult child has a spouse or partner with a primary obligation of support.
• Where an adult child was, and remains, financially dependent on the deceased, the community expectation is usually that provision should be made to address that dependency after death.
• If you have fallen on hard times, and the estate has sufficient assets, the Court may consider whether the deceased ought to have provided a buffer against foreseeable contingencies.
• Where you have been unable to accumulate superannuation or otherwise provide for retirement, the Court may expect a parent to assist if the alternative is financial hardship or destitution.
• A lack of financial reserves, particularly to meet medical or health‑related expenses that become more likely with age, is a relevant consideration.
• The need for a modest fund to provide security and protection against the ordinary vicissitudes of life may support a claim.
• If you are unable to work, or have limited capacity to earn an income, this may justify an increased call on the estate.

Burden of proof

As the applicant, you bear the onus of satisfying the Court, on the balance of probabilities, that further provision is justified in your circumstances.

These considerations are not rigid rules or inflexible principles. There is no presumption either for or against making provision in favour of an adult child. Each case turns on its own facts.

Past conduct of the deceased parent

The Court will not make an order simply to punish the deceased parent or to compensate an adult child for perceived shortcomings in parenting.

However, a parent’s past conduct may be relevant where it has:

• deprived you of opportunities in life, or
• created a causal connection between that conduct and your present financial need.

Estrangement

The significance of any estrangement between you and the deceased depends on the full factual context, including:

• how long the estrangement lasted,
• the circumstances in which it arose, and
• the reasons for it.

There is no rule that an estranged adult child is automatically disentitled from provision. Equally, there are circumstances where the Court may recognise that a deceased parent was justified in making no provision, such as where an adult child has, without proper justification, withheld love, care or support from the deceased in their declining years, or acted with hostility towards them.