Usually, if you are successful in your family provision claim, you will only receive the money from the estate after a judgment has been handed down. However, in certain cases where an applicant has pressing financial needs, an interim family provision order may be made, meaning that the applicant may receive an interim distribution from the estate.

The power to make an interim family provision order is conferred by section 62 of the Succession Act, which relevantly provides the following:

(1) The Court may make an interim family provision order before it has fully considered the family provision application if it is convinced that no less provision than that sought under the interim order would be granted to the applicant in the final proceedings...

(2) Once an interim family provision order has been made, the court must make a final determination of the family provision application that either affirms, revokes, or alters the interim order.

The Facts

The deceased left his entire estate to the first defendant, the plaintiff’s mother. The applicant, the deceased's daughter, commenced family provision proceedings and sought an interim family provision order. It was not disputed that the applicant shoudl receive provision from the deceased's estate. She was an eligble person, had limited financial resources, was receiving treatment for cancer, and had incurred financial uncetainty upon the deceased' death.

The applicant claimed an interim amount of $220,206.62 and sought the bulk by December 2021 to meet medical expenses. However, the defendant claimed the estate could provide $20,000 by the 22nd November, however, maintained that the balance could not be provided until the end of January 2022.

Legal Principles

The Court may order an interim order that it thinks ‘proper.’ A proper order is not being restricted to ‘immediate maintenance,’ but is one that awards only the sum required for the applicant’s ‘real needs’ pending trial, usually with a condition that the money be recoverable if the applicant is unsuccessful in the overall proceedings.

In determining an application for an interim family provision order, the Court must:

  • Examine the evidentiary material before it to determine the probable outcome of the final hearing; and
  • Consider the circumstances of the applicant and the estate.

The Decision

The Court held that the evidence sufficiently established that the applicant had an immediate financial need. Specifically, the applicant had received nothing from the estate, but has demonstrated financial need entailing funds for cancer treatment, school fees for child, health insurance, a car, and general medical expenses.

In reaching their decision, the Court also noted that an interim order is not limited to immediate maintenance. Thus, indicating that even if the defendants’ case was accepted that the applicant did not need the specific Daratumumab treatment, interim provision was needed to keep her options open amidst her medical uncertainty.

Given the above, the Court found that she would likely be awarded no less than $220,206.62 under the final order for the named expenses. Therefore, an interim order was made.

Timing of the Payment

The Court ordered that the $220,206.62 be paid in the following instalments:

  • $20,000 would be paid by 22 November and $160,000 by 1 December
  • The remaining interim provision amount, being $40,000 would be paid by 31 January 2021

On the evidence, the Court found it was not unreasonable for the defendant to raise the bulk of the interim provision before December, as $20,000 was already admitted to be available and the rest of the bulk could be obtained by requesting her bankers to raise funds on the estate’s properties in that time. Relevantly, there was no evidence that short term finance had been rejected by her bankers.

The Takeaway

As demonstrated through Bryan v Beveridge, interim orders raise multiple issues which must be addressed by the court, namely whether the order is appropriate to be made, how much should be ordered, and when such payment should be made. Integral to a successful application for an interim order is that the applicant establish a pending financial need and that their overall claim for family provision is likely to be successful.

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.