To claim family provision, an applicant is required to demonstrate that they have been left with inadequate provision for their maintenance, education or advancement in life. That is, the applicant must demonstrate ‘financial need’. To demonstrate financial need and enable the Court to determine the provision which the applicant should have received, the applicant must provide full and frank disclosure of their financial affairs.
The Requirement of Full & Frank Disclosure
An applicant is under an obligation to provide full and frank disclosure of their financial affairs in order to enable the Court to determine the matter. This requirement stems from the following:
- Per section 59(2) Succession Act, the Court must have regard to the facts known at the time of the claim. The relevant factors, as noted in section 60 Succession Act, include the financial resources and needs of the applicant and the financial circumstances of any person they are living with.
- The onus is on the applicant to establish that they have been left with inadequate provision.
- The general obligation of the applicant and their legal representatives under the Civil Procedure Act, to assist the Court by complying with its directions and orders to help facilitate the just, cheap and quick resolution of the real issues.
- The prescribed form of the applicant's supporting affidavit, set out in Practice Note SC Eq 7, which directs the applicant to disclosure their and their partner’s financial circumstances.
The failure of an applicant to provide appropriate financial disclosure may result in their application for family provision being unsuccessful.
The deceased, Patricia Stone, left her entire estate to her son Michael, save for some personal possessions and a small legacy, which were left to her daughter Gail. Gail commenced a family provision application.
At the hearing, the key issue was whether Gail had provided adequate disclosure of her financial circumstances and the financial circumstances of her de facto partner.
Gail’s initial evidence provided limited information about her financial circumstances. She did not disclose her income or any liabilities, nor did she make any disclosure of her partner’s financial circumstances. Following directions from the Court to file further affidavits, Gail filed an additional affidavit that provided details of her updated financial circumstances and approximated her partner’s assets and earning capacity. Prior to the hearing date, additional directions were made requiring both parties to update their evidence. Gail provided an affidavit updating her financial circumstances but did not provide any update on her de facto’s financial affairs.
Michael then made a formal request for Gail to produce documents concerning her and her partner’s financial affairs, including bank statements, tax returns and assessments. Gail produced some of the requesting documents but refused to provide any documents concerning her de facto’s financial circumstances.
At the hearing, the limited evidence concerning Gail’s partner’s financial circumstances was struck out as hearsay evidence and concerns were also raised regarding the insufficient state of Gail’s evidence. Gail then sought to introduce evidence from her de facto partner. However, the Court rejected the introduction of that evidence noting that Gail had consistently failed to comply with directions to provide proper disclosure and that her partner had failed to file any evidence in the proceedings and had not made themselves available for cross-examination.
Did Gina Provide Adequate Financial Disclosure?
The Court held that Gina had failed to fully disclose her de facto's partner's financial circumstances, including by failing to provide relevant financial documents. Consequently, the Court was unable to properly discharge its function to make the evaluative judgement required by the family provision regime, and Gina’s claim was dismissed.
A family provision application will not be successful if the applicant fails to provide full and frank disclosure of their financial circumstances. So, what should you do to ensure you meet the disclosure requirements?
- Seek Legal Advice.
- Provide the Court with independent evidence of your finances, e.g., bank statements or tax assessment notices. Make sure to update your evidence if your circumstances change.
- Ensure that you comply with the Court's directions and stick to the deadlines. Late evidence may not be accepted.
DISCLAIMER: The information provided above is published for general informational purposes only and is not intended to be nor should it be relied upon as a substitute for legal or other advice.