Section 60 of the Succession Act 2006 (NSW), sets out the factors that the Court must consider when ANY eligible person makes a claim.

It is in the assessment of the section 60 factors, that the Court will ultimately place different weights and assess the cases of different classes of eligible people differently.

That is, Section 60 requires the court to determine (among other things):-

(a.) the nature and duration of the relationship between the applicant (plaintiff) and the deceased. In looking at this factor the Court may be more inclined to make more generous family provision orders for a long-time spouse compared to a short de facto spouse or a child.

(b.) the nature and extent of any obligations owed by the deceased to the applicant, or any other beneficiary. In looking at this factor, the Court may assess that the deceased had a greater duty to provide for the surviving spouse, then to an adult child or to a former spouse or grandchild. 

(c.) the nature and size of the estate may be a factor that Courts consider when assessing the claim of different types of eligible people. For example, if a child (who is the biological child of the deceased and also the surviving spouse) makes a claim on the estate because the estate was left 100% to their surviving parent; this claim is unlikely to succeed if the estate is small. However, if the estate was very large estate, the Court may entertain the application. 

(d.) the financial resources and need of the applicant and other beneficiaries may also be factors that the Court will consider. The court will look at each case on its merits and give greater weight to a Plaintiff’s claim if they have greater financial need or merit. A claim made by any eligible person has good prospects of success if they have great financial need and merit, and the Court does not necessarily treat financial need assessments differently between different types of eligible people. But the financial need of an elderly surviving spouse (who may only have 10 years left to live) may be less than a young adult child who has just finished high school, has no real-estate assets and no career. Therefore, the quantum of those two claims would be different based on the different financial need of the two different applicants (not simply because they are different types of eligible persons). 

There is no legislation that suggests that one class of eligible person is favoured over another, and each eligible person’s claim and any competing claims are assessed pursuant to Section 60. Whilst there may be generalised patterns that a current and long-term spouse generally achieves much better outcomes than other classes of eligible people; that is not always the case and much always depends ont he merits of each applicant’s case and their financial merit. That is to say, if a former spouse had greater financial need than a current spouse, a Court may order additional provision to the former spouse and make no adjustment to the current spouse if they had competing claims.