Family provision claims can by adult children of any age

As the financial impacts of COVID-19 continue, people may be looking for ways to obtain funds that they might not otherwise pursue. One such area is in the Wills and Estates arena. Family Provision claims may be made against a deceased estate where a person seeks Orders from a court for some provision (if they have been excluded from a Will entirely) or for further provision (where they are not satisfied with what was left to them).

There are several classes of persons who may be eligible to make a Family Provision claim on a deceased Estate, found in section 57 of the Succession Act 2006 (NSW). This article focuses on children of a deceased person.

Estate Ameisen, Deceased [2020]

In this case, the deceased mother had two living adult children at the time of her death. A 71 year old, who’s chosen career was as a medical practitioner, and a 65 year old daughter.

The mother had provided significant financial assistance to her son during her lifetime, and wished to ‘even up’ what had been provided to her son and her daughter. She also knew her son was a poor manager of his own finances, having been a doctor for the better part of his life, with very little to show for it.

So, she left her daughter three properties (worth about $3.5 million), and her son one (worth about $1.2 million), as well as an income stream for her son to receive about $5,500 per month over 4-5 years.

The son sought further provision from the Estate through a Family Provision claim in the NSW Supreme Court.

Why can a court change what a person says in their Will?

The court considers that when a person makes a Will, they have a duty as a wise and just testator, in deciding how to divide their Estate. If the court finds there has been a breach by a testator of this duty, the court has jurisdiction to remedy the breach and modify how the deceased’s ‘bounty’ is divided, by making orders for family provision.

How does the court decide?

The Succession Act provides at section 59 when a court may make an Order for family provision. An eligible person must demonstrate that the deceased’s Will did not make adequate provision for their “proper maintenance, education or advancement in life” (or, if there is no Will, that the laws of intestacy do not make such adequate provision).

What do proper maintenance, education, and advancement in life, mean?

Family Provision claims may be made on the basis of proper maintenance, education, or advancement in life, or a combination of these. Court decisions have contemplated what these concepts mean:

  1. Different levels of need may range from mere subsistence to anything short of sheer luxury. Desire to improve one’s standard of living or fulfill career ambitions where hindered by lack of financial means, presents a need for assistance. If an Estate is wealthy and was able, but failed, to provide assistance, a court may find the deceased failed to make “adequate provision”. [1]
  2. Advancement in life” is not confined to an eligible person in their younger years – it is a phrase of wide import.[2] It goes beyond the need for education and maintenance, extending to a capital payment to set a person up in business or upon marriage.[3]
  3. The word “proper” implies something beyond mere dollars and cents and can look at how parties might reasonably have expected to live in the future. [4] It means in all circumstances of the case: when answering the question of whether a child has been left without adequate provision, it must be considered in light of:
    1. Competing claims upon the bounty of the testator, and their relative urgency;
    2. The standard of living the family enjoyed during the deceased’s lifetime;
    3. A child’s need for education or assistance in a chosen occupation;
    4. The deceased’s ability to meet those claims when regarding the size of the Estate;[5]

So what happened in this case?

At the time of making her final Will, the deceased’s son had been reinstated as a medical practitioner. At the time of her death, he had been struck of the register. The court considered this factor, and whether she may have made further provision, if she had known that fact when preparing her final Will.

Ultimately, the court decided against the son. The mother had included a detailed memo setting out why she had prepared her Will in the way she did. Her earlier Wills were also supporting evidence that she had discharged her duty as a just and wise testator.

Need advice about this topic?

If you are:

  1. Facing a battle against a family member who wants more,
  2. Wishing to draft a Will that may not be pleasing to all of your children, or
  3. Believe you have not been adequately provided for in a Will,

We would recommend that you contact our Estates team to discuss how we may assist you.

[1] Kleinig v Neal (No 2) [1981] in Drury v Smith [2012] at [153].

[2] Mayfield v Lloyd-Williams [2004] at [114].

[3] Bartlett v Coomber [2008] at [50].

[4] Vigolo v Bostin [2005] at 228.

[5] McCosker v McCosker (1957) at 571-572.

Leave a Reply