How the court assesses Family Provision or Testator’s Family Maintenance Claims

The Testator’s Family Maintenance or Family Provision Legislation introduces a threshold jurisdictional question as to whether or not the deceased’s Will, or the statutory intestacy provisions,[1] has made “adequate provision for the proper maintenance, support, education or advancement in life”[2] of the claimant.  The above question is one of fact and relevant to the claimant’s station in life as at the date of the deceased’s death[3] The court measures the terms “proper” and “adequate” against the claimant’s station in life and the nature of the relationship that they had with deceased[4]. The court does not consider the terms “proper” and “adequate” as fixed concepts but rather as flexible or relative. The court uses “a multi-faceted evaluative judgement,[5] which weighs up the competing needs of the parties[6]. The court has regard to the current and future needs of the claimant. The court looks through the lens of a “just and wise testator and not one who is fond or foolish,”[7] and one who is placed in a position of knowing all of the facts. A non-exhaustive list of examples of factors considered by Australian Courts have been codified in s60(2) of the Succession Act 2006 (NSW). According to s60(2) of the Act the court ought to consider:

(a) any family or other relationship between the applicant and the deceased person, including the nature and duration of the relationship,

(b) the nature and extent of any obligations or responsibilities owed by the deceased person to the applicant, to any other person in respect of whom an application has been made for a family provision order or to any beneficiary of the deceased person’s estate,

(c) the nature and extent of the deceased person’s estate (including any property that is, or could be, designated as notional estate of the deceased person) and of any liabilities or charges to which the estate is subject, as in existence when the application is being considered,

(d) the financial resources (including earning capacity) and financial needs, both present and future, of the applicant, of any other person in respect of whom an application has been made for a family provision order or of any beneficiary of the deceased person’s estate,

(e) if the applicant is cohabiting with another person–the financial circumstances of the other person,

(f) any physical, intellectual or mental disability of the applicant, any other person in respect of whom an application has been made for a family provision order or any beneficiary of the deceased person’s estate that is in existence when the application is being considered or that may reasonably be anticipated,

(g) the age of the applicant when the application is being considered,

(h) any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate of the deceased person or to the welfare of the deceased person or the deceased person’s family, whether made before or after the deceased person’s death, for which adequate consideration (not including any pension or other benefit) was not received, by the applicant,

(i) any provision made for the applicant by the deceased person, either during the deceased person’s lifetime or made from the deceased person’s estate,

(j) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person,

(k) whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased person’s death and, if the Court considers it relevant, the extent to which and the basis on which the deceased person did so,

(l) whether any other person is liable to support the applicant,

(m) the character and conduct of the applicant before and after the date of the death of the deceased person,

(n) the conduct of any other person before and after the date of the death of the deceased person,

(o) any relevant Aboriginal or Torres Strait Islander customary law,

(p) any other matter the Court considers relevant, including matters in existence at the time of the deceased person’s death or at the time the application is being considered.

[1] See ss6(1) and 7 FPA.

[2] See s6(1) FPA, Coats v National Trustees Executors & Agency Co Ltd (1956) 95 CLR 491; Singer v Berghouse (No 2)(1994) 181 CLR 201 and Bondlemonte v Blackensee [1989] WAR 305.

[3] Blore v Lang (1960) 104 CLR 124.

[4] Vigolo v Bostin (2005) 221 CLR 191.

[5] Basten JA, in Foley v Ellis [2008] NSWCA 288, at [3]; Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19 and Deveraux –Warnes v Hall [2007] WASCA 235.

[6] Re Allen, Allen Manchester [1922] NZLR 218.

[7] Bosch v Perpetual Trustee Co Ltd [1938] AC 463.

Leave a Reply