Duty of disclosure — claimants in family provision proceedings

Recent decisions of the Victorian and Tasmanian Supreme Courts have highlighted the onus on claimants for family provision from deceased estates to provide adequate evidence of their own financial circumstances.¹

Legislative framework

The applicable Victorian legislation² provides that for a Court to order provision out of the estate of a deceased person for a claimant’s proper maintenance and support, the following criteria must be satisfied;

• the claimant must be an ‘eligible person’;³
• the deceased person owed a moral duty to provide for the claimant’s proper maintenance and support at the date of their death;⁴ and
• the distribution of the deceased person’s estate, as directed by the provisions of their Will (if any) or the laws of intestacy (if they failed to leave a valid Will), fails to make adequate provision for the claimant’s proper maintenance and support.⁵

Applicable legal principles

In assessing whether a claimant has been left without sufficient provision for their proper maintenance and support, the Court needs to consider all of the evidence concerning the claimant’s personal and financial circumstances and determine whether they have a financial need from the deceased person’s estate.⁶

Proof of a moral duty owed by the deceased person towards the claimant is not sufficient to enliven the Court’s jurisdiction to award an amount of family provision, the claimant must also demonstrate that they have a need for provision from the estate.⁷ ‘Demonstrating need’ does not require a claimant to show that they are destitute. ‘Need’ is not restricted to the requirements of basic necessity and sustenance.⁸

In such cases, there is an onus on the plaintiff to lead sufficient evidence of their financial position which demonstrates that they have a need for provision from the deceased person’s estate. That onus extends to filing documentary evidence with the Court and verifying statements made by the claimant under oath in the witness box regarding their financial circumstances.

Jones v Public Trustee as Executor of Estate of Mavis Pauline Jones and Jones [2025] TASSC 1 (Jones)

In Jones, the plaintiff failed to discharge his obligation to disclose to the Court as fully and as frankly as possible all details of his financial and material circumstances, including those of his wife. This extended to the need for the plaintiff to disclose the following matters:

• that his adult son lived in the plaintiff’s home rent-free in circumstances where the plaintiff claimed that he couldn’t cover his own weekly expenses; and
• an explanation to the Court regarding the substantial gambling turnover (which amounted to over $23,000 in 12 months) of his wife and adult son.

Associate Justice Daly held that “…[n]either the Court nor the interested party (being the beneficiary of the deceased’s Will) should be required to embark upon any search for information which the applicant himself had the obligation to provide”.⁹

Fortunately for the plaintiff in Jones, the Court concluded that his failures in respect of financial disclosure were not so significant as to ‘totally’ undermine his credibility or to justify the refusal of the application for that reason alone. Inferentially, the plaintiff’s failure to fully and frankly disclose his financial position to the Court had the effect of diminishing the amount he might otherwise have received.

Re Janson; Gash v Ruzicka [2020] VSC 449 (Re Janson)

In Re Janson, the plaintiff had little knowledge of her financial situation. For example, she was unable to state what savings, if any, she had, stating “I don’t do money” while giving evidence at the trial. There was also a lack of documentary evidence before the Court as to the plaintiff’s financial circumstances and need, which failed to support her oral evidence concerning her:

• income received from homestay students;
• savings and superannuation;
• liabilities, including a loan provided to her by her daughter; and
• periodic expenditure.

Justice McMillan held that based on the evidence before her at the time of the trial, she could not make an order for further provision out of the estate in favour of the plaintiff. Fortunately for the plaintiff, she was provided with a further opportunity to file documentary evidence of her financial circumstances at the time of the trial for the Court’s consideration. This was solely due to the defendant in the proceeding conceding that further provision ought to be made out of the estate in favour of the plaintiff.

The plaintiff subsequently filed the necessary evidence, and Justice McMillan ordered that further provision in the amount of 11% of the subject estate be awarded to the plaintiff.¹⁰ On appeal, the plaintiff was awarded additional provision of a total of 15% out of the estate.¹¹

The decision in Re Janson can be contrasted with the Supreme Court of Victoria’s decision in Briggs v Mantz¹² where the plaintiff led insufficient evidence about his financial position, making the Court’s task impossible in assessing his need. Justice McMillan ultimately dismissed the plaintiff’s application and said as follows in her judgment:

“I had some difficulty in reaching conclusions as to the plaintiff’s financial position because he has failed to produce cogent evidence on this issue and was not frank with the Court in explaining either his income or expenses. Ultimately, I can only conclude that as it is his case to establish, and as he has failed to establish it, the plaintiff has not proved any financial need that relevantly or substantially bears on the question of his entitlement to an order for further provision.”¹³

Conclusion

The decisions in Re Janson and Jones highlight the following:

• the importance for claimants in family provision proceedings in filing sufficient evidence with the court in support of their claims;
• the need for claimants to retain experienced and knowledgeable legal practitioners to advise on and prepare their claims;
• in support of their claim, a plaintiff should provide evidence verified by documentation concerning their periodic income and expenditure, together with their assets and liabilities; and
• where plaintiffs in such cases fail to lead sufficient evidence of their financial circumstances, it places the Court in a position where it is being asked to make an order for family provision while having to speculate as to the plaintiff’s need.¹⁴ This could result in the Court dismissing the claim.

Contact us

Rigby Cooke Lawyers’ Wills, Trusts & Estates team can advise and represent claimants with their claims for family provision from deceased estates and ensure they discharge their onus in filing adequate evidence of their financial circumstances.

If you wish to discuss how we can assist you, please contact a member of our Wills, Trusts & Estates team.

_References

<sup>1. Jones v Public Trustee as Executor of Estate of Mavis Pauline Jones and Jones [2025] TASSC 1 (Daly AsJ) (Jones); Re Janson; Gash v Ruzicka [2020] VSC 449 (McMillan J).
2. Part IV Administration and Probate Act 1958 (Vic) (Act).
3. s91(2)(a) Act.
4. s91(2)(c) Act.
5. s91(2)(d) Act.
6. Brimelow v Alampi [2016] VSC 135 at para [18] (McMillan J)
7. MacEwan Shaw v Shaw [2003] VSC 318.
8. Ball v Newey (1988) 13 NSWLR 489, 492 (Samuels JA).
9. Jones (n 1) at [14].
10. Re Janson; Gash v Ruzicka (No 2) [2022] VSC 139.
11. Gash v Ruzicka [2023] VSCA 189.
12. [2014] VSC 281 (McMillan J).
13. Ibid, at [124].
14. Singer v Berghouse [1992] NSWCA 230, 16 (Sheller JA, Cripps JA agreeing).</sup>