Pursuant to s 60(2)(j) of the Succession Act, the court may have regard to any evidence of the deceased’s testamentary intentions when determining a family provision claim. However, as is illustrated in Armitage v Fraser the key question before the court is whether adequate or proper provision has been made for the applicant. In this inquiry, evidence as to the deceased’s intentions will not be determinative.

Facts

The deceased’s oldest daughter, Jenny, brought a family provision claim challenging the estate’s distribution. The will provided that Jenny would receive a $30,000 legacy while the rest and residue of the $433,200 estate would be left to the deceased’s youngest daughter Karen.

The deceased’s justification for the unequal distribution of her estate was recorded in clause 10 of the will. This provided that the deceased and Jenny did not have a close personal relationship, that the deceased did not feel supported by Jenny and that she believed the bequeathed gifts to be more than adequate. The deceased’s solicitor’s file notes indicated that the deceased's decision was also influenced by her belief that the deceased’s ex-husband (Karen and Jenny’s father) had executed a will leaving all of his assets to Jenny.

What was the Relevance of the Deceased's Intention?

In considering whether or not adequate provision had been granted to Jenny, that court had regard to the deceased’s testamentary intention, noting the following:

  1. The evidence of the deceased’s intentions was undoubtedly relevant to the case. However, the deceased’s statements in respect of the applicant should not be unquestionably accepted as true. Here, the court did not consider that Jenny and the deceased had, in fact, been estranged. While contact between them had been infrequent in recent years, and their relationship did not appear close, it was acknowledged that this was partly due to their distant geographic locations and the fact that Jenny had two young children. Further, although Jenny would receive a significant inheritance under her father’s will upon his death, she was not, as the deceased had stated, the sole beneficiary of that will.
  2. Moreover, given Jenny’s circumstances and needs, adequate provision had not been made. Notably, at the time of trial, Jenny was unemployed, had substantial debts and was responsible for the care of her elderly father. Although it was conceded that some of the debts accrued by Jenny and her partner were the result of lifestyle choices, it was clear that Jenny did not really have much in terms of property. Additionally, despite the modest size of the estate, it was capable of making reasonable provisions for both Jenny and Karen, and an increase in Jenny’s provision would not have an unduly negative effect on Karen.

Ultimately, the court considered that while the deceased’s disappointment in the decline of the relationship between herself and Jenny was understandable, it was not entirely justifiable in the circumstances and did not negate the deceased’s responsibility to provide Jenny with adequate provision.

Outcome

The court concluded that adequate provision for Jenny’s proper maintenance, education or advancement in life had not been made. The court ordered that Jenny receive $135,000 in lieu of the original provision.

The Takeaway

Family provision is generally seen as the exception to the principle of testamentary freedom, and the power exercised by the court will not be confined by a reluctance to interfere with the wishes of the deceased. While the court will have regard to any explanations given by the deceased or their reasons for excluding a potential beneficiary, the existence of such intentions does not relieve the court from their obligation to engage in the relevant enquiry under the Succession Act. Essentially, a claim for family provision will turn on the question of whether or not the applicant has been left with adequate provision, not on the deceased’s testamentary intentions.

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.