Adequate does not always mean fair: family provision claims in Australia

By Andrew Meiliunas and William Moore

In our previous update about family provision claims in Australia, we outlined who is eligible to make a claim and the criteria the court adopts when deciding if a family provision claim should succeed. Where a person is eligible, and has not been provided for under the Will, the key point is determining what is ‘adequate’ provision for that person. Adequate does not mean fair, and there are a number of factors that courts will look at in answering this question.

Threshold questions

A court must first determine the following points:

  1. that the claimant falls within a category of an ‘eligible person’;
  2. that the deceased person had a moral obligation to provide for the claimant; and
  3. that the provision the claimant receives under the Will (or intestacy provisions, if applicable) is not adequate for their proper maintenance and support.

Provided the person making the claim satisfied the points above, the court then needs to determine the amount of provision that constitutes ‘adequate provision’.

What is adequate?

Unlike some types of disputes, when it comes to family provision claims, there is no scale or formula for the court to rely on when determining the amount of provision that constitutes ‘adequate provision’. This is not a jurisdiction of fairness, equality or compensation. It depends on the facts in each particular case, including the size of the estate, the financial position of the individual claimant, their relationship with the deceased and the financial position of other beneficiaries. Need of the beneficiary is a key factor.

No two claims are the same, and it is not possible to adopt a rigid cookie-cutter approach when trying to determine the amount that a court might order. The two most common classes of claimants are adult children and spouses or domestic partners. The examples below highlight when the court exercise its discretion, the outcomes can be varied and, some might say, inconsistent.

Adult children

Generally, the community does not expect a parent to look after their child for the rest of the child’s life and into retirement. If, however, an adult child remains a dependent of the parent, the community usually expects the parent to make provision to fulfil that ongoing dependency after death. But where a child, even an adult child, falls on hard times, and where there are assets available, then the community may expect a parent to provide a buffer against contingencies. For example, where a child has been unable to accumulate superannuation or make other provision for their retirement, this could be a sum to assist in retirement where they would otherwise be left destitute.

Estrangement and need

How then does the court deal with a claim by a child when the conduct or behaviour of that child towards their parent is such that community standards would no longer expect the parent to owe any sort of obligation to include their child in their Will?

In Joss v Joss [2020] VSC 424, the claimant was successful with her claim despite a difficult relationship with her parents, at one point even trying to kill her father. In this case, the dependency that was created by the parents providing for the claimant and the need it created trumped the behaviour of the claimant. This is to be contrasted with the case of Hansen v Hennessey [2014] VSC 20 where two children who were estranged from their mother failed with their claims, the main reason being they each wrote strongly worded letters to their mother, which the court described as a ‘repudiation of the relationship’.

Spouses and domestic partners

In this jurisdiction, the courts do not distinguish between spouses and domestic partners. A spouse’s claim (or their defence of a claim) remains of high priority but there has been a shift from the idea that a spouse’s claim always takes primacy over all other claims. It is likely that this is not a change in approach but rather a reflection of a societal change over time.

Aside from the issue of primacy of a spouse’s claim, we have seen a change in approach when considering the accommodation needs of a spouse when the court is determining what is ‘adequate provision’ for a spouse.

The idea that the accommodation needs should match the type of accommodation that the spouse enjoyed during the deceased’s lifetime is no longer the general approach taken when there is a strong competing claim. The accommodation needs are now based on what is genuinely required given that the claimant is now single, which often means a downgrade. The case of Cowap v Cowap [2020] NSWCA 19 could perhaps be seen as an example of one of the harsher judgments (a 90-year-old spouse as a beneficiary losing her home), but it is a judgment that takes into account the genuine needs of the widow in the face of a strong competing claim of an adult child with a disability from a previous relationship.

The recent Victorian case of Wilden v Meller [2023] VSC 119 dealt with a claim by the deceased’s husband of 25 years. The deceased did not have any children. Under the deceased’s final Will, she provided her husband with the right to live in their matrimonial property (which was solely in her name) and provided him with right to seek that the property be sold and an alternative property be purchased for him to reside in. On the husband’s death, the proceeds of the property were to be divided between the deceased’s nieces and nephews and a charity. The husband’s claim was for sufficient funds from the estate to enable him to purchase a home outright and, among other things, sufficient funds to supplement his current income. The court decided to give the husband a ‘portable life interest’ in the property, which would allow him to use the value of the property to secure appropriate accommodation (such as an accommodation bond or a retirement village) but did not give him the matrimonial property outright.

If you, or someone you know, has any questions about claims for further provisions or Will disputes, please contact the estate disputes specialist located in your State.


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