What Does the Court Consider When Making a Family Provision Order?

Once you have established your eligibility to contest a will, you must then demonstrate that you have been left with inadequate provision for your ‘maintenance, education, or advancement in life’. In determining whether you meet the relevant criteria, the court will have regard to the particular circumstances of the case.

To understand how the court will make its decision, it is necessary to consider the following questions:

  • What is ‘Maintenance, Education & Advancement in Life’?
  • What is an ‘Adequate’ or ‘Proper’ Provision?
  • What are the Relevant Circumstances in Each Case?

'Maintenance, Education and Advancement in Life'

Maintenance, education, and advancement in life, for the purpose of the Succession Act, may be understood as follows:

Advancement in Life

Advancement in life refers to the applicant’s ability to improve their prospects in life. This concept has a wide meaning and is not confined to younger applicants. It may incorporate any provision which permits a more affordable transition to the next stage of the applicant’s life.

Education

Education generally invokes provision enabling an applicant to undertake some form of education which will provide the applicant with the skills to acquire gainful employment. This can include university courses, TAFE courses, and other forms of education.  A provision for education can be equally applicable to applicants of all ages.

Maintenance

Maintenance refers to the continuation of the pre-existing state of affairs and the applicant’s ability to meet their needs is considered. Adequate maintenance extends beyond an applicant’s ability to provide for their basic necessities and, for example, may require that the applicant have sufficient funds to provide for contingencies in addition to the funds live day-to-day.

 

'Adequate' or 'Proper' Provision

To successfully contest a will, an applicant will be required to establish 'needs', specifically their need for a provision to enable or support their maintenance, education and/or advancement in life. Once the applicant's need for a provision is established, the court is required to consider what and 'adequate' or 'proper' provision would be given the circumstances. This begs the question: what is meant by adequate' and 'proper'? The commonly cited interpretation of ‘adequate’ and ‘proper’ first noted in Bosch v Perpetual Trustee Co Ltd, draws a clear distinction between the two terms:

‘The use of the word “proper” …connotes something different from the word “adequate”. A small sum may be sufficient for the adequate maintenance of a child, for instance, but, having regard to the child’s station in life and the fortune of his father, it may be wholly insufficient for his proper maintenance. So, too, a sum may be quite insufficient for the adequate maintenance of a child and yet may be sufficient for his maintenance on a scale that is proper in all the circumstances.’

In effect, ‘adequate’ focuses on the amount of the provision and whether it satisfactorily provides for the applicant’s ‘maintenance, education and advancement in life’. Whereas ‘proper’ prescribes the necessary standard of the provision, taking into account the age, gender, health, station in life, and the size of the estate. Accordingly, an applicant does not need to show that they are destitute or restricted to the necessities of life as what is ‘proper’ or ‘adequate’ is relative to the circumstances of the case.

Relevant Factors

In determining what is an ‘adequate’ or ‘proper’ provision, the court will have regard to the needs of the applicant and capacity of the estate to meet those needs. The following factors will likely be considered:

Size and Nature of the Estate

The size of the deceased’s estate will influence what the court considers to be an ‘adequate’ provision. For instance, where the estate is large enough to accommodate for the applicant’s needs, it is more likely that the court will find in favour of the applicant. Similarly, in the case of a large estate, what is a ‘proper’ provision will likely be larger. However, where there is a small estate with multiple competing claims, the court is more likely to uphold the deceased’s will. The nature of the estate is also relevant as whether the estate consists of property, cash, or shares will affect the way in which it can be distributed.

Applicant's Present and Reasonable Anticipated Future Needs

The financial resources and the present and future financial needs of the applicant, alongside the applicant’s age and health, are relevant factors. These factors will influence what is considered ‘adequate’ provision. For example, an applicant’s financial resources, including their potential earning capacity, speaks to their capacity to meet any needs they might have from their own resources. Similarly, the age and health (including any disability) of the applicant will influence their needs and may negatively impact their ability to work and are therefore relevant to a consideration of the applicant’s needs.

Any Contributions made by the Applicant to the Property or Welfare of the Deceased

The court will also consider any contribution of the applicant to the conservation or improvement of the estate or to the welfare of the deceased. For instance, it may be relevant if the applicant made financial contributions to the acquisition of property in the estate or if they worked on the relevant property for little reward. Similarly, if the applicant has made sacrifices to care for the deceased, this may be taken into consideration in determining what was an ‘adequate’ or ‘proper’ provision.

Nature and Quality of the Relationship between the Plaintiff and the Deceased

 The court will consider how close the relationship was, what kind of relationship it was, and the duration of the relationship.

The Nature and Strength of the Beneficiaries Claims' to Testamentary Recognition

Regard will be had to any competing claims on the estate in which the needs and circumstances of any other claimants or beneficiaries will be considered. The court will weigh and balance any competing claims to determine whether ‘adequate’ provision was made.

Character and Conduct of the Applicant

Regard will be had to whether there was any ‘disentitling conduct’ on the part of the applicant. Although the purpose of family provision legislation is not to reward good behaviour nor punish bad behaviour, the courts will consider conduct which is relevant to the applicant’s relationship with the deceased. Estrangement, violent conduct on the part of the applicant, or conduct which diminished the deceased’s estate such as significant theft, are examples of character/conduct considerations which can affect the outcome.

A more extensive yet non-exclusive list of relevant factors is set out in the relevant legislation. These include:

  • The nature of the relationship between the applicant and the deceased;
  • The financial resources and needs of the applicant, the beneficiaries and any other person who has made a family provision claim;
  • The nature of any obligations or responsibilities owed by the deceased to the applicant, the beneficiaries and any other person who has made a family provision claim;
  • The age and health of the applicant;
  • The value of the estate;
  • Any contributions the application made to the estate or welfare of the deceased;
  • The character and conduct of the applicant;
  • Whether there are competing claims for the deceased’s estate;
  • Whether the applicant was being maintained by the deceased prior to their death;
  • Whether any other person is liable to support the applicant;
  • Whether any provision was made for the applicant during the deceased’s lifetime;
  • Any relevant Aboriginal or Torres Strait Islander customary law;
  • The financial circumstances of any person whom the applicant is cohabiting with;
  • Any evidence of the deceased testamentary intentions; and
  • Any other relevant matter.

Cases & Articles

Should Your Children Receive Equal Inheritances?
Disentitling Conduct: The Effect of Estrangment
How Relevant Are the Deceased’s Testamentary Intentions?
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DISCLAIMER: The information provided above is published for general informational purposes only and is not intended to be nor should it be relied upon as a substitute for legal or other advice.