Family provision applications enable an eligible person to seek “adequate provision” for their “proper maintenance and support” from the estate of a deceased person when something less or nothing at all has been provided for them.

There is no mathematical formula and in practice, the courts can consider practically anything that they deem relevant to determine and order “such provision as the court thinks fit”.

iStock 1466727570At a minimum, a prospective applicant must be able to show they are an eligible person, ie a dependent or a family member; that they need a better provision from the deceased’s estate than has been provided; and in all the circumstances it is just and reasonable that the estate of the deceased person ought to provide a greater benefit.

What about dependents who have a disability?

That the needs of a disabled dependent might ordinarily be met from social security and welfare entitlements – eg NDIS or a disability pension – does not disentitle them from a proper and just provision from a deceased estate.

Disability sometimes leads to a legal tension  in the context of what provision ought to be made for a person who is in receipt of such assistance and entitlements.

Consider the case of Luis Oliveira who died in 2019.  He was survived by his wife, Felicidade, to whom he had been married for more than 50 years, and their 7 children.

Luis’ will left the entirety of his $550,000 estate to his wife who had recently been diagnosed with Alzheimer’s Disease and was in assisted-care living.  Felicidade also gained sole entitlement to $730,000 held in a joint bank account. No benefits were provided to any of the children who were all adults.

Maria – who has a particularly severe form of Down’s Syndrome as well as other medical conditions and is non-verbal – filed proceedings in the NSW Supreme Court for a share of her deceased father’s estate.

In considering the claim, Justice Francois Kunc was mindful of her disability and needs but noted that her ongoing medical and personal needs were fully covered by her NDIS package and social security entitlements.

Her brother acting as her advocate claimed that – regardless of her medical and personal needs being covered by existing arrangements – she was in need of provision of a significant lump sum to cover ‘contingencies’ that might occur.

Rather than presenting expert or other evidence as to her additional needs – or the likelihood of medical and other expenses that should be budgeted for – Maria’s advocate could only speculate on what those future needs might be.

Although courts frequently make allowances for reasoned future contingencies supported by medical experts, Justice Kunc was not prepared in this instance to rely on mere speculation.

He observed that foreseeable expenses were covered by Medicare for medical issues and the NDIS package for personal needs.

As she was in receipt of social security benefits, she will – so held the court – never be affected by unemployment and had no assets of value that might be lost or destroyed.

All “current needs are being met and there is no reason to think that that will change,” ruled the judge.

Having failed to establish she had received inadequate provision -given her immediate needs and future needs were satisfied – her claim was dismissed.

The court’s reasoning may appear somewhat callous cold or crude. Other cases with similar facts have resulted differently. A further provision was made for a disabled child has been approved where need – over and above available benefits – has been demonstrated.[1]

Maria Oliveria by her tutor Ivo De Oliveira v John Antonio Oliveira [2023] NSWSC 1130 Read case

[1] Abrahams v Abrahams [2015] QCA 286