Falling within one of the six categories of eligible person under section 57 of the Succession Act 2006 (NSW) is only the first step in a family provision claim. For three of those categories, there is an additional hurdle: the Court must be satisfied of “factors warranting” the application before the claim can proceed.
Many otherwise meritorious claims fail at this stage. The factors warranting requirement is the most common reason that former spouses, grandchildren and people in close personal relationships find their claims defeated before the Court ever reaches the substantive question of adequate provision. Understanding what the requirement means, what evidence supports it, and what kinds of factors the Court has rejected, is therefore essential for any claimant in those categories and equally important for executors and beneficiaries assessing the strength of a claim that has been made against an estate.
Which categories require factors warranting?
Section 59(1)(b) of the Succession Act 2006 (NSW) requires factors warranting to be established for claims brought by persons in three of the six categories under section 57:
(d) a former wife or husband of the deceased;
(e) a dependent grandchild of the deceased, or a dependent member of the deceased’s household; and
(f) a person in a close personal relationship with the deceased at the time of death.
Spouses, de facto partners and children at the time of death (categories (a), (b) and (c)) do NOT need to establish factors warranting. They go straight to the substantive question of whether adequate provision has been made.
Why factors warranting exists
The factors warranting requirement is a discretionary gate-keeping mechanism. It exists because categories (d), (e) and (f) are wider than the close family relationships that society would obviously expect to be considered in a will. They sweep in former spouses (who may have been divorced for decades), grandchildren (who often have living parents able to provide for them), household members (who could be very distant relatives or none at all), and close personal relationships (which can take many forms).
Without an additional filter, anyone falling within these categories could bring a claim regardless of how tenuous their connection to the deceased actually was. The factors warranting hurdle requires the claimant to point to something specific about their relationship with the deceased that justifies the Court entertaining their claim.
What “factors warranting” means
There is no statutory definition. The case law has developed the test through application rather than abstract definition. In broad terms, factors warranting means circumstances which, taken together, suggest that the claimant was a person whom the deceased ought to have considered when making testamentary dispositions.
The classic formulation, drawn from the cases, is that the claimant must demonstrate “factors which when added to facts which render the applicant a person eligible warrant the making of the application”. Put another way: being eligible is one thing; being the kind of person whose claim ought to be entertained is another.
The test is whether the claimant has a place in the deceased’s affections, life, or financial responsibilities sufficient to justify them being treated as a person the deceased should have provided for. It is not a numerical test, not a strict legal test, and not the same as the ultimate question of whether adequate provision was made.
Factors that have been accepted as warranting
The case law shows the following kinds of factors are commonly accepted:
Financial dependence on the deceased
Past or ongoing financial dependence is a powerful factor. The longer the dependence and the more substantial the support, the stronger the factor. A stepchild who was wholly supported by the deceased throughout school years has a strong factors warranting case; one who received occasional gifts does not.
A long history of close support, care or contribution
Significant non-financial contribution can also count – care of the deceased in illness, contribution to the household over years, support in raising children, or other practical assistance that placed the claimant in something more than an arms-length relationship.
Contribution to building up the deceased’s assets
Where the claimant contributed (financially or otherwise) to the acquisition or maintenance of the deceased’s assets, that is a strong factor. This is most often relevant for former spouses (who may have contributed during the marriage) and for close personal relationships.
Promises or representations relied upon
A representation by the deceased that they would provide for the claimant – particularly where the claimant relied on that representation to their detriment – is a weighty factor. This overlaps with the equitable doctrine of proprietary estoppel but can also be relevant to factors warranting.
The absence of any other family member to provide for the claimant
Where the claimant has no other person to turn to (because their parents are deceased, or estranged, or themselves impoverished), the deceased’s role becomes more obviously one the deceased ought to have considered.
The role the deceased actually played in the claimant’s life
A grandparent who effectively raised a grandchild, or a sibling who lived with and cared for another sibling for decades, has played a role that supports factors warranting. The Court looks at the practical reality of the relationship, not just the legal label.
Factors that have been rejected as insufficient
Equally instructive is what does not get a claimant over the line:
Mere family relationship is not enough. A grandchild who saw the deceased at Christmas and on birthdays but was not in any meaningful sense dependent on them is unlikely to succeed on factors warranting.
Love and affection alone are not enough. Many former spouses, friends in close personal relationships, and household members will have had genuine affection from the deceased. That alone is not what the statute requires.
Being remembered in an earlier will, by itself, is not enough. It is relevant evidence (it shows the deceased once thought of the claimant) but it is not determinative.
Disappointment at being left out is not enough. The Court is concerned with whether the deceased ought to have considered the claimant, not with the strength of the claimant’s grievance.
A short period of cohabitation, or a fleeting close personal relationship, will rarely satisfy factors warranting on its own.
The categories in more detail
Former spouses (category (d))
Former spouse claims are the most often defeated at the factors warranting stage. The starting point in any former spouse claim is the Family Court property settlement (if there was one): that settlement was intended to resolve the financial relationship between the parties. If it did so cleanly, and the parties had no further dealings, the Court will struggle to find factors that warrant a further claim.
Factors that have supported former spouse claims include: ongoing financial dependence after the marriage; a long marriage during which the claimant made significant contributions to the deceased’s assets that were not fully accounted for in any property settlement; promises or assurances made after separation; and continuing connection to the deceased through shared children or shared interests.
Factors that have defeated former spouse claims include: a clean property settlement followed by years of no contact; remarriage of the claimant; the deceased’s subsequent long-term relationship or marriage; significant time between the divorce and the deceased’s death; and any prior agreement (in the property settlement or otherwise) that the parties’ financial relationship was at an end.
Dependent grandchildren and dependent household members (category (e))
Category (e) claimants must first satisfy the dependence requirement under section 57 itself. Once they do, the factors warranting question asks whether the dependent relationship was of a kind that warrants the deceased having considered them.
For grandchildren, the strongest cases involve grandparents who effectively raised the grandchild, or who took on a parental financial role – paying for schooling, providing housing, or supporting the grandchild through long periods when the parents could not. Cases where the grandparent’s role was supplementary or occasional, even where genuine affection existed, tend to fail factors warranting.
For dependent household members (which includes most stepchild claims), the factors are similar. A stepchild raised in the deceased’s home from a young age, financially supported through schooling and beyond, has a strong case. A stepchild who lived with the deceased briefly as a teenager, with their biological parent providing the substantive support, has a weaker case.
In every case, evidence of the deceased’s conduct matters. Statements to others, financial records showing support, letters and cards, attendance at significant family events – all build the picture of a relationship that warrants the deceased having considered the claimant in their will.
Close personal relationships (category (f))
Close personal relationship claims are the least common but can be the most fact-dependent. The typical claimant is a sibling or close friend who has lived with the deceased for many years in a relationship of mutual care.
Factors that support a close personal relationship claim include: a long duration of cohabitation; clear evidence of mutual domestic and personal care (as opposed to mere shared accommodation); financial interdependence or pooling of resources; significant practical contribution to the deceased’s life; and an absence of any other person obviously responsible for providing for the claimant.
Factors that work against the claim include: the existence of a close family relationship that provided for the claimant; a short or recent cohabitation; the relationship being primarily one of service (even if unpaid); and significant gaps where the parties did not live together.
How factors warranting is established in proceedings
Factors warranting is established through the claimant’s affidavit evidence in the family provision proceedings. There is not a separate preliminary hearing – the question is generally determined at the same time as the substantive question of adequate provision.
The practical implication is that the claimant’s affidavit needs to address factors warranting carefully and specifically. Generic statements about loving the deceased and missing them will not do. The affidavit needs to set out the particular factual matters that show why the claimant ought to have been considered.
Documentary evidence is often important: photographs, letters, cards, financial records showing support, statements by the deceased to third parties, prior wills, and evidence of the deceased’s stated reasons for excluding the claimant (if known).
If factors warranting cannot be established
If the Court finds that factors warranting has not been established, the claim ends there. The Court does not go on to consider whether adequate provision was made. This is why factors warranting is sometimes called a “jurisdictional” or “threshold” question.
For a claimant who fails at this stage, other potential routes (such as proprietary estoppel based on a promise made by the deceased, or a challenge to the validity of the will) may remain available, depending on the facts. Take advice promptly.
How Baker Love can help
Factors warranting is the most common point at which family provision claims fail in NSW. It is also the area where careful early assessment of the merits, and careful preparation of the affidavit evidence, makes the most difference.
Baker Love acts in contested estate matters throughout New South Wales. Our team includes Adrian Corbould, Special Counsel and a Law Society of NSW Accredited Specialist in Wills and Estates, recognised in Doyles Guide as a leading wills and estates litigation lawyer in NSW. We assess factors warranting honestly at the outset, before any significant costs are incurred, and we will tell you if your claim is unlikely to clear the threshold.
We offer a range of fee arrangements, including, where appropriate, no win no fee for family provision claims. Whether that option is available depends on the merits of your claim and the size of the estate.
Time limits are tight, you generally have 12 months from the date of death to file a claim. Call Baker Love on (02) 4944 3322 or use the contact form on the website for a confidential discussion.
This article provides general information only and is not legal advice. Factors warranting is a fact-sensitive question and outcomes depend on the particular circumstances of each case. You should obtain advice tailored to your circumstances before acting or refraining from acting on anything in this article.
ABOUT ADRIAN CORBOULD
Special Counsel | Accredited Specialist, Wills & Estates | TEP
Adrian Corbould leads the Contested Wills & Estates Team at Baker Love Lawyers. He is one of approximately 75 solicitors in New South Wales recognised by the Law Society as an Accredited Specialist in Wills and Estates, drawn from a profession of more than 41,000. He is also a full member of the Society of Trust and Estate Practitioners, the international professional body for trusts and estates lawyers, and uses the post-nominal TEP. For more than 20 years his practice has been confined to estate disputes.
