Future Inheritance: A Financial Resource?

Section 60(2)(d) of the Succession Act indicates that an applicant's present and future financial resources and financial needs are matters which the court will consider in determining a family provision application.

This begs the question: is a future inheritance a financial resource?

'Financial resource' is a term that connotes a degree of entitlement to, control over, or relative certainty of receipt of property. However, a prospective inheritance is speculative. A testator may change their will at any time, and an applicant for family provision cannot guarantee their entitlement to a future inheritance.

Thus, if a testator is still alive at the date of the hearing, a potential inheritance cannot be taken into account in determining the plaintiff's entitlement to a family provision claim.


The plaintiffs' each made a family provision claim against the estate of their (alleged) father. There was no dispute that the plaintiffs' were eligible persons.

Prior to the hearing, the executor issued subpoenas to the mother and stepfather of the plaintiffs for various documents, including the will of each. The executor alleged that each of the plaintiffs had a potential inheritance out of their mother and stepfather's estates which was a financial resource, thus, it was necessary to subpoena the wills to allow the court to appreciate the value of the plaintiffs' prospective inheritance.

Future Inheritance NOT a Financial Resource

In considering the relevance of the subpoenas, Hallen J concluded that a future inheritance was not a financial resource, noting the following:

In a case such as this one, that an applicant is, or may be, a beneficiary named in the Will, or on intestacy, of a person who has not died is, in my view, irrelevant otherwise. The potential inheritance of an applicant is too speculative to be considered as a financial resource, given that a testator can, ordinarily, change his, or her, Will, and because a Will has no legal effect until the death of the testator. Testamentary intentions may change. At the date of death, which may be some time away, the applicant may no longer be a beneficiary named in the Will, or the person may not have died intestate. At the date of the hearing of the claims, assuming the testator or intestate is alive, the applicant for a family provision order would have no entitlement to, control over, or relative certainty of receipt of, property of the testator or intestate.


Hallen J set aside the subpoenas, finding that the documents sought, including the wills, were irrelevant to the plaintiffs' application for family provision.

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.