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Family Law Newsletter

What considerations does the court make when dealing with an order for a family provision?

Courts in Western Australia have the power to make an order for family provisions under the Inheritance (Family and Dependants Provision) Act (the Act) in instances where the disposition of the deceased’s estate effected by their will, or the law relating to intestacy – or a combination of the will and that law – has not made adequate provisions from their estate for the proper maintenance, support, education or advancement in the life for the following parties:

• a spouse or de facto partner who was living with the deceased immediately before their death;
• any person who at the time of death of the deceased, was entitled to receive maintenance, such as a former spouse or de facto, whether pursuant of a court order, by agreement, or otherwise;
• a child who was living with the deceased at the time of death;
• a grandchild of the deceased who was wholly or partially being maintained by the deceased, or whose parent, the child of the deceased had predeceased the deceased, living at the date of death of the deceased;
• a parent of the deceased.

When does the court make a determination for an order for a family provision?

In instances where an adequate provision has been found, the court has the discretion to issue an order of the estate as it sees fit.

When attempting to determine if an order for family provision is to be made, a number of matters are taken into account by the courts. First, the court will ask if the applicant has been left without the proper provisions. If the court deems that a person who is eligible for an order for a family provision to be made, then the second question will revolve around the type of provision that should be ordered. In determining the answer to the questions, the court will take into account matters such as the testator’s ‘moral duty’, along with other factors derived from case law and legislation.

Under s 6(3) of the Act, the court has the power to refuse to make an order on character grounds, or due to the conduct by the applicant which would in the opinion of the court, disentitle them from receiving a benefit of an order.

What considerations does the court take into account when making an order for a family provision?

When making a determination for an order for a family provision, the courts will look into the totality of the relationship between the person making the application and the deceased, in order to establish what amounts to a proper provision, and whether a proper provision has been made according to the law.

One important thing to note, is that case law has stated that the mere existence of a particular relationship, or evidence of a close and loving relationship, does not amount to enough of a justification for the courts to award a provision, as Windeyer J found in Blore v Lang (1960) 104 CLR 124; [1960] HCA 73 at 137:

“The jurisdiction under the Testator’s Family Maintenance Act is to provide for deserving persons according to their requirements, not to reward past services. This is sometimes overlooked and evidence concerning the present and probably future requirements of the applicant is subordinated to or submerged in evidence of past services to the testator. Allegations and denials concerning episodes in the past are then likely to become emphasised at the expense of evidence directed to the central issues in the case.”

What happens if there are competing claims for a family provision?

When the courts are considering making an order for a family provision, they are required to take into account all competing claims in regards to the beneficiary of the estate.

Alternatively, it is important to be aware, that just because there may be a lack of competing claims to the estate, does not mean that the applicant is more likelier to receive a provision because the test of what amounts to an adequate provision remains, taking into account all of the surrounding circumstances of the case.

How does the court assess the financial need of an applicant for a family provision?

Making a provision which is adequate in regards to the financial need can be an opaque concept, and what is considered to be proper is dependent on the size of the estate. Therefore, an applicant does not need to demonstrate that they are destitute, but instead, the court will take a broad brush approach looking into matters such as the standard of living the applicant had experienced when the deceased was still alive, and the moral duty in relation to financial need. The approach of Tobias JA in Collins v McGain [2003] NSWCA 190 at 42 can perhaps provide some guidance:

“… the question of needs must not be too narrowly focused. It must, in my view, take into account, depending on the circumstances of the case, present and future needs including the need to guard against unforseen contingencies.”

The character and conduct of an applicant for a family provision

Under s 6(3) of the Act, a claim may be refused on character or conduct grounds which may result in an applicant being disentitled to a family provision. Because character or conduct is taken into account within the legislation, indicates that such matters are a significant consideration regarding a family provision claim.

If character or conduct is an issue, then the onus of proof falls towards those who are alleging that an applicant should be disentitled due to character or conduct.

In order to ascertain what character or conduct issues may be considered by the courts, some guidance can be provided by Ormiston J in Collicoat v McMillan [1999] 3 VR 803 at 818:

“What is right and proper… is not determined by the “character and conduct” of each applicant but by what the testator ought to have felt in duty bound to provide notwithstanding any defects in character or conduct but nevertheless having due regard to the nature of their relationship with and their treatment (whether morally reprehensible or the opposite) of the testator during his or her lifetime. It is only when that behaviour has affected, or (arguably) is perceived to have affected, the testator that he or she is in good conscience entitled to make lesser or greater provision for an applicant than that to which the applicant would have been entitled having regard only to the bare bones of his or her financial needs and circumstances.”

Further illumination can be provided by Gibbs J in Hughes v National Trustees, Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134 at 156:

“The question whether conduct is sufficient to disentitle an applicant to relief must depend not only on the nature of the conduct itself, but also, to some extent, on the strength of his need or claim to provision from the estate of the testatrix. The stronger the applicant’s case for relief, the more reprehensible must have been his conduct to disentitle him to the benefit of any provision.”
Family provision matters are extremely complicated, and if you have an issue in regards to a family provision, please contact a lawyer who will be able to assist you in dealing with any questions or concerns that you may have.

 

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