If you are looking into contesting a Will, there is no way under, over, or around the concept of adequate provision. The concept is the cornerstone of any claim contesting an estate.
So, what does “adequate provision” actually mean? How does it manifest in practice, and how does a Court in Western Australia decide whether or not a beneficiary of a Will has received adequate provision from a testator (Will-maker).
TL;DR
Let’s make sense of it in plain English.
- In Western Australia, the vehicle to contest an estate is a Family Provision Claim (‘provision claim‘) under the Family Provision Act 1972 (WA) (‘Act‘).
- As the name suggests, the crux of a provision claim is the concept of adequate provision, which in simple terms is whether a testator (Will-maker) has made enough provision for a person’s proper maintenance, support, education, and advancement in life.
- When assessing a provision claim, the Court will use a two-stage test under the Act. First, has the testator made adequate provision for the relevant person? If not, what should the provision be?
- The Court’s assessment of whether a relevant person has been left with sufficient provision for their proper maintenance, support, education, and advancement in life is individual, there is no fixed formula. However, the Court will ordinarily always consider the relevant person’s need, the relationship between the testator and the applicant, the size of the estate, and any competing claims against the estate, among other factors.
- A common misconception in relation to the Court’s consideration of adequate provision is the pursuit of the concept of ‘fairness’, often expressed as a desire for equality between the beneficiaries. These concepts play no part in the Court’s assessment. The assessment of adequate provision being strictly individualised to the relevant person.
- It is important to note that only specific categories of person are eligible to commence a provision claim.
The heart of a family provision claim
A provision claim is a request by a person to the Court to intervene to change the distribution of a Will from its original terms. The Court will only do this where it is convinced that an eligible person was not provided with adequate provision for proper maintenance, support, education and advancement in life.
In Western Australia, a provision claim has two stages:
- Was adequate provision made to an eligible applicant?
- If not, what provision should be made to remedy this?
Who is eligible to commence a provision claim?
Only specific categories of people can commence a provision claim with the Court. As a creature of the Act, it is the Act that provides who may commence a claim:
- Spouse / de-factor partner;
- Children (incl adult children);
- Dependants and former dependants; and
- Step-children and grandchildren (in certain circumstances).
Learn more about family provision claims in our comprehensive guide.
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What the Court considers
Assuming a person is eligible to commence a claim, the Court will then consider whether a person has been left adequate provision by a testator, which ordinarily involves the following factors:
- The applicant’s financial position (income, assets, liabilities, debts, financial needs, ect);
- The nature of the relationship between the testator and applicant;
- The applicant’s contribution to the estate (financial and non-financial contributions to the deceased’s estate and welfare);
- The size and nature of the estate;
- The deceased’s intentions (where written); and
- The applicant’s character and conduct.
However, it is important to note that the Court’s application of these common elements will be individual to each application to account for each person’s unique circumstances. In this way, there is no fixed formula that the Court applies in it’s consideration.
Deciding what provision should be made
Once the Court has decided that an applicant has not been provided with adequate provision, it must then decide what provision should be made. Similarly, the Court has made clear that there is no fixed formula in this determination and will often vary their decisions significantly from case to case. Ordinarily, the Court will consider the same factors used to determine whether the applicant was provided with adequate provision in the first place.
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It isn’t about fairness
At Law, there is no requirement for a testator to distribute his/her/their estate fairly. Therefore, in its assessment of whether adequate provision has been made by the testator, and what provision should be made if not, the Court will <u>not</u> consider equality or fairness between the beneficiaries.
Why plain advice matters here
Because “adequate provision” is so fact-specific, it’s genuinely hard to predict an outcome without a close look at the details. A claim that feels strong on emotion may be weak on the legal test, and vice versa.
This is exactly where specialist guidance earns its place. Good advice tells you honestly whether the provision you received is likely to be found adequate — before you commit time, money and emotional energy to a claim.
The takeaway
“Adequate provision” is the question every inheritance claim in WA comes back to: were you left with enough for your proper needs, given all the circumstances? It’s not about equal shares, and it’s not about hurt feelings. It’s a careful, individual assessment the Court makes with the whole picture in view.
If you’re wondering whether you were adequately provided for — or you’re an executor defending an estate against a claim — our inheritance disputes team can give you a clear, honest read on where you stand.
Speak with our specialists to understand your position.
Frequently asked questions
Does “adequate provision” mean everyone gets an equal share?
No. It’s about whether you received enough for your proper maintenance and support, not about dividing an estate equally between beneficiaries.
Can I claim if I was left something, just not enough?
Yes. Receiving a gift doesn’t prevent a claim if that provision wasn’t adequate for your proper needs.
What’s the biggest factor the Court looks at?
There’s no single factor. Financial need, the relationship with the deceased, the size of the estate and competing claims are all weighed together.
Is being left out of a Will automatically inadequate provision?
Not necessarily. In some circumstances, no provision may still be found adequate. It always depends on the individual facts.
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