What Does “Adequate Provision” Mean in a NSW Family Provision Claim?

The Statutory Source: Section 59 of the Succession Act 2006 (NSW)

Section 59 of the Succession Act 2006 (NSW) is the gateway provision for every family provision claim in NSW. The Court can make a family provision order only if satisfied that the deceased’s will, the rules of intestacy, or both, have failed to make adequate provision for the proper maintenance, education or advancement in life of an eligible person. 

The Explanatory Note to the Succession Amendment (Family Provision) Bill 2008 records that section 59 reproduces the long-standing test applied in NSW since the Family Provision Act 1982. The provision protects eligible family members and dependants from being left without support, while preserving testamentary freedom to the extent consistent with that protection.

More: What Is a Family Provision Claim in NSW?

“Adequate” and “Proper” Are Distinct Concepts

The words “adequate” and “proper” each carry a distinct legal meaning. The NSW Supreme Court and Court of Appeal authorities treat them as related but separate enquiries.

“Adequate” Focuses on the Applicant’s Needs

The word “adequate” directs attention to whether what was left, if anything, suffices for the applicant. The court considers the applicant’s financial position, age, health, and reasonable expectations. It is a needs-focused enquiry that asks what level of support the applicant requires to maintain themselves appropriately.

“Proper” Looks at All the Circumstances

The word “proper” looks beyond the applicant’s needs to the broader context. The size and nature of the estate, the relationship history with the deceased, the contribution made by the applicant to the deceased’s welfare or estate, and the competing claims of other beneficiaries all bear on what is “proper”. The NSW Court of Appeal in Tobin v Ezekiel [2012] NSWCA 285; 83 NSWLR 757 confirmed this distinction at paragraphs 109 to 111.

The Two Words Operate Together

The High Court in Singer v Berghouse (No 2) (1994) 181 CLR 201 held that the question is whether the provision is adequate for the applicant’s proper maintenance, education and advancement in life. The court applies a single composite test, not two separate hurdles. “Adequate” without “proper” would tilt too far toward need, while “proper” without “adequate” would lose the focus on whether the applicant has been left short.

The Role of Community Standards

Adequate provision is not measured by the trial judge’s personal view. The court applies community standards, treating the law as serving the people who live under it. Several factors guide that judgment:

• Contemporary expectations. A provision that would have been adequate decades ago is not necessarily adequate today. The court applies standards current at the date of the hearing, not the date of death.
• Family circumstances and contribution. What is reasonable for a spouse differs from what is reasonable for an adult child. A child who cared for an elderly parent for years has a stronger claim than one who maintained no contact.
• Size of the estate. A modest estate constrains what is realistic. A larger estate widens the range of what is “adequate” because providing for one applicant does not deprive others.
• Competing claims and disentitling conduct. Where the applicant has acted in ways the community would regard as disqualifying, the threshold for finding inadequate provision can be raised.
• The will-maker’s reasons. A reasoned explanation by the deceased for a limited provision is given weight, but it does not bind the court if the result falls below community standards.

The High Court in Vigolo v Bostin (2005) 221 CLR 191 confirmed that the language of the test is “general but value-laden” and operates by reference to community standards.

Factors the Court Considers Under Section 60

Section 60(2) of the Succession Act 2006 (NSW) lists 16 specific factors the Court may consider. The list is not exhaustive. The most commonly engaged factors include:

The court weighs the factors as a whole rather than scoring them individually.

Case Law That Shapes the Meaning

The meaning of adequate provision in NSW is shaped by several leading authorities, each adding a layer to the test.

Singer v Berghouse (No 2) (1994)

This High Court decision established the two-stage approach. The court first asks whether the provision is inadequate for the applicant’s proper maintenance, education and advancement in life. If yes, the court then determines what provision ought to be made.

Vigolo v Bostin (2005)

The High Court reaffirmed the relevance of moral duty as an aid to understanding discretion. Gleeson CJ observed that the statutory language is “general but value-laden”, to be given practical meaning through community standards.

McCosker v McCosker (1957)

In McCosker v McCosker [1957] HCA 82; 97 CLR 566 at 571 to 572, the High Court held that “adequate” and “proper” are not interchangeable. What is adequate is measured against what is proper, and what is proper requires regard to all the circumstances of the case.

Tobin v Ezekiel (2012)

The NSW Court of Appeal in Tobin v Ezekiel [2012] NSWCA 285; 83 NSWLR 757, primarily a contested probate decision, set out the assessment framework cited in family provision matters: whether the provision is adequate requires consideration of the applicant’s financial position, the size and nature of the estate, the relationships between the parties, and the circumstances and needs of others with legitimate claims.

Scott v Scott (2022)

The recent NSW Court of Appeal decision in Scott v Scott [2022] NSWCA 182 confirmed that adequate provision is an evaluative judgment made on all the facts. The Court of Appeal will intervene only where the trial judge has applied the wrong principle or reached a result manifestly outside the range of reasonable outcomes.

More: How Does Notional Estate Work in NSW Family Provision Claims?

How Adequate Provision Is Assessed in Practice

The court’s evaluation is fact-specific. Several practical themes recur in NSW family provision matters:

• A composite, fact-driven judgment. There is no fixed sum or percentage that defines adequate provision. The court evaluates the totality of the circumstances rather than applying a formula.
• Date of hearing, not date of death. Adequacy is judged at the time of the hearing. Significant changes in the applicant’s circumstances after death are relevant.
• Modest estates constrain outcomes. Where the estate is small, even a strong claim may receive a limited provision. The court cannot order what is not available.
• Spouses generally receive priority. The Brereton J speech on family provision and subsequent authority confirms that spouses, particularly widows, often receive the lion’s share unless special circumstances apply.
• Adult independent children. Independent adult children with comfortable means face a higher bar than dependent or struggling adult children.
• Lump sums dominate. Most orders are for lump sum provision rather than periodic payments, reflecting the preference for clean disposition of estates.

Speak to a NSW Family Provision Lawyer

If you have been left out of a will or believe the provision made for you is inadequate, call Empower Wills and Estate Lawyers on 1300 414 844. Our specialist practice acts for claimants and executors in NSW family provision matters at every stage. Adequate provision arguments turn on careful evidence work and tailored submissions, and we discuss fee options at the first consultation. Our arrangements include payment plans, sliding scales, pensioner discounts, and no-win, no-fee agreements in eligible cases. Disbursements and barrister’s fees remain payable in all matters.

Frequently Asked Questions

Is adequate provision a fixed amount or percentage?

No. Adequate provision is an evaluative judgment based on all the circumstances. There is no fixed sum, percentage of estate, or formula. Each case turns on its own facts, including the applicant’s needs, the estate, and competing claims.

Does inadequate provision automatically mean I will receive more?

No. A finding of inadequate provision opens the door to the second stage, where the court decides what provision ought to be made. The court still considers the estate’s size and competing claims before settling on an amount.

How is “proper” maintenance different from “adequate” provision?

“Adequate” focuses on the applicant’s needs. “Proper” looks at the wider circumstances, including the estate, relationships, and competing claims. The two operate together in a single composite test under section 59 of the Succession Act 2006 (NSW).

Can adequate provision change between filing and hearing?

Yes. Adequacy is assessed at the hearing date. Material changes in the applicant’s financial position, the estate’s value, or the competing claims of other beneficiaries can shift the answer.

Does the will-maker’s stated reason for excluding me matter?

It can. The court considers the testator’s explanation but is not bound by it. Where reasons fall below community standards, the court may still find an inadequate provision and make an order.

What if the estate is small?

A modest estate constrains the orders the court can make. The court cannot order a provision that exceeds the available estate property. Notional estate orders under Part 3.3 of the Succession Act 2006 (NSW) can sometimes widen the pool, but only where the criteria are met.