Case Note – Singer v Berghouse (No 2) (1994) 181 CLR 201

In Singer v Berghouse (No 2) it was established that the process of assessing a family provision application involves a two-stage process. The majority described the approach as follows:

The determination of the first stage in the two stage process called for an assessment of whether the provision (if any) made was inadequate for what, in all the circumstances, was the proper level of maintenance etc appropriate for the applicant having regard, amongst other things, to the applicant’s financial position, the size and nature of the deceased’s estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who had legitimate claims upon his or her bounty. The determination of the second stage, should it arise, involved similar considerations.

The judgment notes that it is only once the jurisdictional question has been answered in the affirmative that the second stage occurs, which is a determination of what provision ought to be made.