Disclosure in Family Provision Claims

Disclosure in Family Provision Claims

It is fundamental to a family provision claim that the plaintiff evidences their financial need in order to demonstrate that the Will of the deceased fails to adequately provide for the proper maintenance, advancement and education in life. 

The Court's practice note requires evidence to be put on early by a plaintiff setting out the financial circumstances of the plaintiff, as well as their spouse or anyone else who is liable to support them. 

Conversely, the Defendant (usually the executor) must disclose the assets of the estate, and any beneficiary who wishes to raise their circumstances must also set out their financial affairs in the same manner as the plaintiff.

Beneficiaries are often reluctant to do so, as they have not commenced the proceedings and may not wish to tell the public about what they earn, what they spend their money on, and what assets and liabilities they have generally. However, if a beneficiary does not disclose this information then the Court may infer that they are financially comfortable and may be more at ease in taking part of their interest in the estate and providing it to the plaintiff.

Whilst this may be undesirable for a beneficiary, a failure to disclose can be fatal to a plaintiff. One of the best examples is the case of Leary v NSW Trustee & Guardian (2017) NSWSC 1113, whereby a plaintiff disposed that he was homeless, had no assets and was reliant on a disability support pension, lived frugally and had debts to pay. 

As the trial approached, the executor served him with a notice to produce certain financial records, and subpoenaed a number of third parties seeking details of the plaintiff's financial affairs. The plaintiff ignored the notice to produce and did not comply with it.

The plaintiff's solicitors sought leave to cease to act. This is never a good sign.

It came to light that the plaintiff had lied to the court in his affidavits, and had received $450K from a travel insurance claim, had received significant life insurance payouts from his mother and stepfather, traded the stock market, and had gambled most of his money away.

The result? The plaintiff's credibility was obliterated, and ultimately the claim was dismissed. 

If you have a family provision claim, are an executor (or an advisor to one) then please feel free to contact the team at Morris Succession Lawyers. We are experienced experts in the field and are happy to provide a free initial appointment to assess your matter. 

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