Estate Litigation

They say that “sometimes the poorest man leaves his children the richest inheritance”. But is this adequate?

One of the grounds that an eligible person may contest a deceased person’s will is that they have not been given adequate provision from the estate for their proper maintenance, education and advancement in life.

This bears the question – how much is ‘adequate’?

To assess whether the provision is adequate the Court will consider a number of factors which are appropriate to the claimant’s case. The Court will also consider what the proper level of maintenance, education and advancement in life is for that Clamant.

Some of the factors that will be considered by the Court are the claimant’s financial position, the size and nature of the deceased’s estate, the relationship between the claimant and the deceased and also the relationship between the deceased and any other person who may have legitimate claims on the deceased’s estate.

Hence even if the Court does consider that the claimant has not been given adequate provision for proper maintenance, the Court may still refuse to make an order for further provisions from the estate for that claimant. For example, it may be that there are no assets or not sufficient assets in the estate to make it reasonable for the Court to release further provisions to the claimant. Similarly if there are several beneficiaries under the will, if the size of the estate is not proportionate to the number of beneficiaries, the Court will be reluctant to give even more of the estate to the claimant.

There is also the question of what constitutes ‘proper’ maintenance.

The High Court considered that the word ‘proper’ “…implies something beyond mere dollars and cents”. The High Court’s definition is that “…The use of the word “proper” means that attention may be given, in deciding whether adequate provision has been made, to such matters as what use to be called the “station in life” of the parties and the expectations to which that has given rise, in other words, reciprocal claims and duties based upon how the parties lived and might reasonably expect to have lived in the future.”

Accordingly, the factual circumstances of each case is very important when a claimant wishes to bring a claim on the ground of inadequate provision made by the deceased in the will for the claimant.

One of our experienced solicitors will be able to assist you in assessing your case or answering your questions in relation to Wills and Estates matters. Feel free to contact our office to speak with one of our friendly solicitors today. Call our office on 02 9251 3611 or email us at

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