The Court deals with claims in a two stage process as follows:
- The Court determines whether the claimant was left without adequate provision for his or her proper maintenance, education and advancement in life.
- If the Court determines the claimant has not been adequately or properly provided for the Court in its discretion decides what provision should be made out of the Estate.
The two questions involve similar considerations
The Court puts itself into the shoes of the deceased at the date of his death and asks the following questions:
- Would a wise and just person have made the provision in the will that the deceased made?
- In all the circumstances does the will (or the rules of intestacy where there is no will) make adequate provision for the claimant having regard to all the circumstances ?
In determining the adequacy of the provision and what provision should have been made the Court looks at: the financial position of the claimant, the claimant’s needs and capacity to meet them, the competing claims of other beneficiaries including moral claims, the size of the estate, the standard of living the claimant enjoyed with the deceased during the deceased’s life , in the case of a child the need for education or assistance in some occupation, the totality of the relationship of the claimant with the deceased as against others who claim against the deceased estate.
If the Court determines adequate or proper provision has not been made the Court modifies the Will of the deceased to provide for adequate and proper disposition