What if I'm Left Money in a Will, but it's Not Enough?

Justeen Dormer
Apr 26, 2021
3 min read

Updated: May 8

Family Provision Claims

When a loved one passes away, their Will outlines how their assets should be distributed. But what happens if you receive an inheritance that isn't enough to meet your needs? This is a common and distressing situation, but you may have the right to seek a larger share from the estate through a Family Provision Claim.

This guide explains how the Court decides if you should receive more from a Will and what "adequate provision" really means.

What if I'm Left Money in a Will, but it's Not Enough?

Understanding Family Provision Claims in NSW

For a court to approve a Family Provision Claim, three key conditions must be met:

You must be an 'eligible person': This includes spouses, children, and financial dependents.
The court must find there are factors that justify the claim: This involves looking at your specific circumstances.
The Will (or intestacy rules) failed to make 'adequate provision' for your proper maintenance, education, or advancement in life.

While it's clear that being left out of a Will entirely means adequate provision wasn't made, what happens when you've been given something, but it's just not enough? Let's break down how the Court determines what is 'adequate' and 'proper'.

What is "Proper Maintenance, Education or Advancement in Life"?

The Succession Act 2006 (NSW) doesn't define what "proper maintenance, education or advancement in life" means. While "education" is straightforward, "maintenance" and "advancement" are more complex.

Courts have interpreted these terms to mean more than just covering the bare necessities for survival.

Proper Maintenance: This goes beyond just "bare sustenance." The Court considers your age, status, health, financial situation, and your relationship with the deceased to determine what is 'proper' for you. It often implies continuing a standard of living you were used to.

Advancement in Life: This suggests a provision that helps you move forward in life, such as helping you buy a home or establish a business—something beyond day-to-day living costs.

Ultimately, what is considered 'proper' depends entirely on your individual circumstances.

How Does the Court Decide if Provision is "Adequate"?

"Adequate provision" is another term not defined in the Succession Act. This is intentional, as what is adequate for one person might be completely inadequate for another.

The court makes what is called a "multifaceted evaluative judgment"—essentially, a common-sense assessment based on all the facts. Section 60 of the Succession Act provides a list of factors the Court may consider when making its decision, including:

The nature and length of your relationship with the deceased.
Any obligations the deceased had towards you.
The total value and nature of the estate.
Your current and future financial needs and resources.
The financial circumstances of other beneficiaries.
Your age and health.
Any contributions you made to the deceased’s property or welfare.
Whether anyone else is responsible for supporting you.

The Court can also consider any other relevant matter, giving it wide discretion to ensure a fair outcome.

What if I Think My Inheritance is Inadequate?

Because the court's decision is so specific to each case, you have the opportunity to present your unique circumstances and argue why the provision made for you was not enough. The law is designed to be flexible to ensure justice is done.

If you have been left a gift in a Will that you feel is inadequate to meet your needs, it's important to seek legal advice. Our experienced will dispute lawyers can assess your situation and guide you through the process of making a Family Provision Claim.

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