Q 1: At the time of death were you:

• • • • a child ( including step child) of the deceased;
      • a spouse or de facto partner of the deceased at the time of death;
    OR
    • • • dependent (wholly or substantially maintained or supported) by the deceased;
    AND

    Q 2:  is the estate substantial (at least $1 million)?

    If you can answer yes to both questions then you may be able to bring a family provision claim against the Estate by showing a prima facie case for further and better provision from the deceased's estate.

    (Note: this is a procedural step and only gets you a foot in the door to court).

OR

• Were you promised a portion of the estate and have been excluded because a brother or sister was preferred over you?
• Have your circumstances been unfortunate and you no longer considered as a family member; perhaps you had a problem with alcohol or drugs?
• You didn’t enter the family business so you were not considered in the will.

Example: The leading case is Hughes v National Trustees Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134. In that case the Court gave the bulk of the estate, a farm, to a 54-year old able bodied son who was in need and somewhat incompetent, although he had been unkind to his mother the testator, and he and/or his wife had made it impossible for the testator to continue to live on the farm which the testator owned.

Widow/ers: The general principles relating to provision for a surviving wives or husbands were used by Hedigan J in King v White [1992] 2 VR 417. The principles stated  in King v White were in the context of a widow, but it would seem that no distinction will be drawn between a widow and a widower for current  purposes, and the following principles, have been drawn from the case, are stated in gender neutral terms.

It seems there are three aspects to the duty to secure maintenance for the surviving spouse, as far as the size of the estate and other claims on that estate allow:

• The surviving spouse should have a secure home. Generally, neither a right of occupation nor a life estate will be sufficient, partly because these do not give adequate protection against inflation – and partly because the surviving spouse will usually not have the flexibility to be able to move house simply because he or she desires to do so, or to go into appropriate old age accommodation when he or she becomes too frail to continue to live in the house – generally, the surviving spouse should be awarded the full ownership of the home.
• The surviving spouse should have sufficient means to ensure that he or she has a reasonable income to provide a comfortable lifestyle without anxiety. This is not to be governed by reliance on social security, and should be in accordance with what he or she was accustomed to in the lifetime of the deceased, or would have been accustomed to if the deceased had done her or his duty. There should be protection against inflation.
• There should be a cushion against unforeseen contingencies.