Family Provision Claim Evidence: What Documents Do You Need?

Family Provision Claim Evidence: What Documents Do You Need?

If you are considering making a family provision claim in NSW, one of the most important questions is: what evidence do you need?

A family provision claim is not decided simply by whether a will seems unfair. The Court considers a range of matters, including your relationship with the deceased, your financial circumstances, your needs, the size of the estate, the needs of other beneficiaries and any other relevant circumstances.

That means evidence is critical.

The stronger and more organised your evidence is, the easier it is to assess your claim, prepare your affidavit, negotiate with the executor and present your case at the mediation or hearing.

This article explains the types of documents and evidence that may be needed for a family provision claim in NSW.

Why evidence matters in a family provision claim

A family provision claim is an application for provision, or further provision, from a deceased person’s estate.

To succeed, it is not enough to say that you were left out of the will, or that you received less than you expected. You need to show that the provision made for you was inadequate in the circumstances.

The Court may consider factors such as:

• your relationship with the deceased;
• the nature and duration of that relationship;
• your financial resources;
• your present and future needs;
• your age and health;
• whether you have any disability;
• any dependency on the deceased;
• any contributions you made to the deceased or the estate;
• the size and nature of the estate;
• the financial circumstances of other beneficiaries;
• any competing claims;
• any relevant conduct;
• any other matter the Court considers relevant.

Section 60(2) of the Succession Act 2006 (NSW) sets out matters the Court may consider when determining whether to make a family provision order. This includes matters such as the relationship between the applicant and deceased, the applicant’s financial resources and needs, any disability, contributions made by the applicant, and the size and nature of the estate.

Because these issues are factual, they need to be supported by source documents and affidavit evidence.

Start by getting the will and estate documents

Before assessing a family provision claim, it is important to understand what the will says and what is in the estate.

Useful estate documents may include:

• the deceased’s final will;
• any earlier wills;
• the death certificate;
• the grant of probate or letters of administration, if obtained;
• the executor’s inventory of property;
• details of estate assets;
• details of estate liabilities;
• real estate valuations or appraisals relied upon;
• bank account statements;
• share portfolio records;
• superannuation information;
• life insurance information;
• company or trust documents;
• details of any jointly owned property;
• details of significant gifts or transfers made before death.

These documents help identify the size of the estate and whether there may be assets outside the estate that should be investigated.

Evidence about your eligibility

The first question is whether you are an eligible person.

Some applicants are eligible by their relationship to the deceased. For example, a spouse or child of the deceased will usually be an eligible person.

Other applicants may need further evidence. This can include grandchildren, stepchildren, former partners, people who were dependent on the deceased and lived with the deceased, and people who say they were in a close personal relationship with the deceased.

Documents that may help prove eligibility include:

• birth certificates;
• marriage certificates;
• divorce orders;
• adoption records;
• evidence of a de facto relationship;
• documents showing you lived with the deceased;
• Centrelink records;
• bank transfers showing financial support;
• correspondence referring to dependency;
• evidence that the deceased paid expenses for you;
• evidence of shared household expenses;
• photographs, messages or other records evidencing the relationship.

For some applicants, eligibility is straightforward. For others, proving eligibility may be one of the most important parts of the case.

Evidence about your financial circumstances

Your financial position is usually central to a family provision claim.

The Court will often need to understand your income, expenses, assets, liabilities, superannuation, accommodation position and future financial needs.

You should usually gather documents such as:

• recent payslips;
• tax returns;
• notices of assessment;
• Centrelink statements;
• bank statements;
• credit card statements;
• loan statements;
• mortgage statements;
• lease or rental documents;
• utility bills;
• insurance documents;
• superannuation statements;
• share portfolio records;
• business financial statements;
• company or trust financial statements;
• evidence of debts;
• evidence of childcare costs;
• evidence of school fees;
• evidence of medical expenses;
• evidence of car expenses;
• evidence of any financial support you provide to others.

It is important to be complete and accurate.

A family provision claim requires financial disclosure. If you understate your assets, omit accounts, fail to disclose support from a partner, or minimise your income, this can damage your credibility and weaken your claim.

Evidence about your expenses and future needs

A family provision claim is not only about your current financial position. It is also about your future needs.

Future needs may include:

• housing;
• medical treatment;
• dental treatment;
• psychological care;
• aged care;
• disability support;
• education or retraining;
• childcare;
• support for dependants;
• transport;
• replacement of a vehicle;
• repairs or modifications to a home;
• retirement needs.

Documents that may help include:

• medical reports;
• treatment plans;
• quotes for surgery, dental work or therapy;
• occupational therapy reports;
• NDIS documents;
• school fee statements;
• childcare statements;
• rental appraisals;
• mortgage borrowing capacity assessments;
• property repair quotes;
• car replacement quotes;
• aged care assessments;
• superannuation projections.

For example, an applicant who has serious health issues, insecure housing and limited superannuation may need different evidence to an applicant who has stable employment and owns a home.

Evidence about your health

Health evidence can be important where illness, disability, mental health issues or reduced earning capacity affect your needs.

Useful documents may include:

• GP records;
• specialist reports;
• hospital records;
• psychologist or psychiatrist reports;
• medication records;
• disability support documents;
• NDIS records;
• workers compensation records;
• Centrelink disability support records;
• evidence of treatment expenses;
• evidence about future treatment costs;
• evidence about reduced work capacity.

Health evidence should be specific where possible. General statements such as “I am unwell” are usually less helpful than records showing diagnosis, treatment, prognosis, symptoms, restrictions and likely future needs.

Evidence about your relationship with the deceased

The Court will usually consider the nature of your relationship with the deceased.

This may include:

• whether the relationship was close;
• whether you spent time together;
• whether you provided care or support;
• whether the deceased supported you;
• whether there was estrangement;
• the reasons for any estrangement;
• whether there was reconciliation;
• whether the deceased made promises or statements about provision;
• whether the deceased treated you as a member of their family.

Evidence may include:

• text messages;
• emails;
• letters;
• cards;
• photographs;
• travel records;
• call records;
• witness statements from family or friends;
• evidence of visits;
• evidence of care provided;
• evidence of shared holidays or events;
• evidence of gifts or financial support;
• evidence of attempts to maintain or repair the relationship.

A family provision claim is not simply a financial exercise. The history of the relationship can matter.

Evidence if there was estrangement

Estrangement is common in family provision claims, particularly adult child claims.

If there was estrangement, it is important to explain it carefully and accurately. The issue is not just that there was a breakdown in the relationship, but why it occurred and what each person did or did not do.

Relevant evidence may include:

• messages showing attempts to contact the deceased;
• evidence of family conflict;
• evidence of abuse, neglect or family violence;
• evidence that the deceased rejected contact;
• evidence that another person interfered with the relationship;
• counselling records, where relevant;
• witness evidence from relatives or friends;
• evidence of attempts at reconciliation;
• evidence explaining why contact was not possible or appropriate.

It is usually better to present this evidence calmly and clearly rather than emotionally. The purpose is to help the Court understand the relationship, not to turn the affidavit into a personal attack.

Evidence about contributions

Contributions can be very important in a family provision claim.

A contribution may be financial or non-financial. It may be a contribution to the deceased, to the deceased’s property, to the deceased’s business, or to the deceased’s welfare.

Examples include:

• caring for the deceased;
• helping the deceased remain at home;
• managing appointments;
• providing transport;
• paying bills;
• contributing to renovations;
• working in a family business;
• helping acquire or preserve property;
• providing emotional support;
• assisting with aged care or medical issues;
• helping administer affairs after death.

Documents that may help prove contributions include:

• bank records;
• receipts;
• invoices;
• photographs of work performed;
• emails or messages about care;
• medical appointment records;
• travel records;
• witness statements;
• records of business involvement;
• records of payments made for the deceased.

Contributions do not automatically mean you will receive more from the estate, but they can be relevant to the overall assessment.

Evidence about dependency

Dependency may be important for some family provision claims, especially claims by grandchildren, stepchildren or people who are not automatically eligible by status.

Dependency does not always mean total financial dependency. It may be partial dependency.

Evidence may include:

• bank transfers from the deceased;
• records showing the deceased paid rent, mortgage or bills;
• evidence that the deceased paid medical expenses;
• evidence of living rent-free or at reduced rent;
• evidence of regular gifts or support;
• Centrelink records;
• correspondence about financial support;
• statements from witnesses who knew about the support.

Dependency should be explained with dates, amounts and context where possible.

Evidence about other beneficiaries

The Court does not consider your claim in isolation.

The needs and circumstances of other beneficiaries can be highly relevant. For example, the estate may need to provide for a surviving spouse, a disabled child, minor children, adult children in financial difficulty, or beneficiaries who made significant contributions to the deceased.

Evidence about other beneficiaries may include:

• their relationship with the deceased;
• their financial circumstances, to the extent known;
• whether they received lifetime benefits;
• whether they own property;
• whether they have health issues;
• whether they were dependent on the deceased;
• whether they made contributions;
• whether they have competing needs.

In many cases, you will not have full information about other beneficiaries at the start. That information may become clearer once the executor and beneficiaries file their evidence.

Evidence about the estate and notional estate

The value of the estate is a major issue.

A claim that may be reasonable in a large estate may not be realistic in a small estate with several competing beneficiaries.

You should gather any information available about:

• real estate;
• bank accounts;
• shares;
• managed funds;
• superannuation;
• life insurance;
• motor vehicles;
• businesses;
• companies;
• trusts;
• debts;
• mortgages;
• loans owed to or by the deceased;
• jointly owned assets;
• assets transferred before death.

In NSW, notional estate may also be relevant. This is a complex area that can apply in some cases where assets do not form part of the estate but may still be available for a family provision order.

Examples of assets that may need to be considered include jointly held property, superannuation death benefits, assets passing by nomination, and significant transfers before death.

Notional estate should be investigated early where the estate appears small but the deceased controlled or transferred significant assets before death.

Evidence about promises or expectations

Sometimes the deceased made statements about what they intended to do with their estate.

For example, the deceased may have said:

• “You will be looked after.”
• “The house will be yours.”
• “You will receive the same as your siblings.”
• “I will make sure you are provided for.”
• “You gave up work to care for me, so I will look after you.”

Evidence of these statements may include:

• text messages;
• emails;
• letters;
• cards;
• diary entries;
• witness evidence;
• file notes;
• records of conversations;
• earlier wills consistent with the promise.

Promises are not always decisive, but they may be relevant, especially where the applicant acted in reliance on them.

Evidence about lifetime benefits

The Court may also consider benefits received during the deceased’s lifetime.

This can include benefits received by you or by other beneficiaries.

Examples include:

• gifts of money;
• property transfers;
• payment of debts;
• rent-free accommodation;
• business opportunities;
• payment of school fees;
• cars;
• loans that were forgiven;
• assistance with purchasing property;
• support with living expenses.

Lifetime benefits can cut both ways. They may show that the deceased already made provision for a person, or they may show a pattern of dependency and support.

Preparing your affidavit

Your affidavit is the main document that tells your story to the Court.

It should be clear, accurate and supported by source documents where possible.

A strong affidavit will usually cover:

• who you are;
• your relationship with the deceased;
• your eligibility;
• the deceased’s family circumstances;
• the will and what you received;
• your financial position;
• your income and expenses;
• your assets and liabilities;
• your health;
• your accommodation;
• your future needs;
• your relationship history;
• any dependency;
• any contributions;
• any estrangement and the reasons for it;
• any promises or expectations;
• why the provision made for you is inadequate.

The Supreme Court provides a plaintiff’s affidavit form for family provision matters, and Practice Note SC EQ 07 requires the plaintiff’s affidavit to be adapted from the relevant form.

The affidavit should not exaggerate. It should not omit important facts. It should present your case honestly and persuasively.

Common mistakes with evidence

Providing incomplete financial disclosure

Missing bank accounts, underestimating income, or providing other incomplete or misleading financial disclosure can be problematic for your claim.

Only focusing on the will

The will is important, but the Court also considers your circumstances, the estate, the deceased’s obligations and competing claims.

Not explaining estrangement

If there was a difficult relationship, it should usually be addressed rather than ignored.

Overstating the claim

Overstating your financial need or making allegations without evidence can undermine your credibility.

Ignoring other beneficiaries

A strong claim still needs to be assessed against the needs of other people who may also have a claim on the estate.

Waiting too long to gather documents

Family provision claims are subject to strict time limits. Delay can make it harder to obtain documents and protect your position.

Do you need all documents before getting legal advice?

No.

You do not need every document before speaking to a lawyer.

In many cases, people only have the will, or do not even have that. That should not stop you from obtaining advice, especially where the 12-month time limit is approaching.

We can help identify what documents are needed, request information from the executor or their solicitor, and advise what evidence is most important for your particular claim.

Document checklist for a family provision claim

The following checklist may help you prepare for your first meeting:

Estate documents

• Will;
• earlier wills, if available;
• death certificate;
• probate or letters of administration;
• estate inventory;
• property valuations;
• bank statements;
• share portfolio records;
• superannuation information;
• life insurance information;
• debts and liabilities;
• information about jointly owned assets;
• information about assets transferred before death.

Personal documents

• birth certificate;
• marriage certificate;
• divorce documents;
• adoption records;
• evidence of de facto relationship, if relevant;
• evidence of living with the deceased, if relevant;
• identification documents.

Financial documents

• payslips;
• tax returns;
• notices of assessment;
• Centrelink statements;
• bank statements;
• credit card statements;
• mortgage statements;
• rental documents;
• superannuation statements;
• loan documents;
• business financial statements;
• evidence of debts;
• regular expenses.

Health and future needs

• medical reports;
• hospital records;
• GP records;
• specialist reports;
• medication records;
• disability support records;
• NDIS records;
• quotes for treatment;
• evidence of care needs;
• aged care or support documents.

Relationship evidence

• text messages;
• emails;
• letters;
• cards;
• photographs;
• call records;
• travel records;
• evidence of visits;
• evidence of care;
• witness details;
• evidence of estrangement or attempts at reconciliation.

Why choose PB Ritz Lawyers?

At PB Ritz Lawyers, family provision claims are a core part of what we do.

We regularly act for people who have been left out of a will, received less than expected, or are concerned that the estate does not properly provide for their needs. We understand how to assess the strength of a claim, what evidence is needed, and how to present your circumstances in a clear and persuasive way.

In a family provision claim, the evidence matters. It is not enough to simply say that the will is unfair. Your claim needs to be supported by documents and affidavit evidence dealing with your financial position, health, accommodation, relationship with the deceased, contributions, dependency and future needs.

We can help identify the documents needed, request information from the executor or their solicitor, prepare your evidence, and guide you through negotiation, mediation and, if necessary, a final hearing.

We also offer No Win, No Fee arrangements for approved family provision claimants.

If you are thinking about making a family provision claim in NSW, we can review your circumstances and provide a free case assessment.

Conclusion

Evidence is one of the most important parts of a family provision claim.

The documents you provide can help establish your eligibility, relationship with the deceased, contributions, dependency, and future needs.

If you are considering making a family provision claim in NSW, you do not need to have every document organised before seeking advice. The most important step is to obtain advice early, understand what evidence is needed, and take steps to protect your position before the estate is distributed or the limitation period expires.

Contact PB Ritz Lawyers to discuss your family provision claim. We can review your circumstances, identify the documents needed, and advise whether you may have a claim.