The general principal is that a person has the right to dispose of their estate as they wish. However, the Court has the power to override the deceased’s wishes if the Court determines that this right has been abused because the deceased has breached his or her moral duty to provide proper maintenance and support for those for whom they had moral responsibility.
In determining whether the deceased owed the eligible person a moral duty for their proper and adequate provision the Court stands in the deceased’s shoes and applies current community standards to decide what a just and wise person should have done in all the relevant circumstances.
Part IV of the Administration and Probate Act 1958 (the Act) gives the Court this power to make a family provision order to override the terms of the deceased’s will.
Pursuant to section 91(2) of the Act the Court must not make a family provision order unless satisfied that:
- the person is an eligible person;
- at the time of death the deceased had a moral duty to provide for the eligible person’s proper maintenance and support;
- the distribution of the deceased’s estate in accordance with their Will (or pursuant to Intestacy if they died without a Will) fails to make adequate provision for the proper maintenance and support of the eligible person.
The Court must consider the degree to which:
- the deceased owed this moral duty;
- the estate’s distribution fails to make adequate provision;
- the eligible person is not capable by reasonable means to adequately provide for their own proper maintenance and support; and
- for certain classes of eligible persons the degree of dependency on the deceased at the time of death.
In determining the amount of provision the Court must not provide an amount greater than is necessary for the eligible person’s proper maintenance and support. For persons where dependency must be proved the amount of provision must be proportionate to their dependency.
Eligible Persons
Eligible persons include (section 90 of the Act):
- spouses of domestic partners at the time of death;
- a child of the deceased (including adopted and stepchildren), including adult children;
- a person who believed the deceased was their parent and were treated as such by the deceased, including adult children;
- former spouses or domestic partners who would have been able to take proceedings pursuant to the Family Law Act 1975;
and where dependency at the time of death must be proved:
- a registered caring partner of the deceased;
- a grandchild of the deceased;
- a spouse or domestic partner of a child of the deceased if the child of deceased dies within one year of the deceased’s death; or
- a person who at the time of the deceased’s death is a member of the deceased’s household.
Factors to be considered by the Court
In making a family provision order, the Court must consider the contents of the deceased’s Will and any evidence of the deceased’s reasons for the dispositions pursuant to the Will and intentions relating to provision for the eligible person.
The Court may consider:
- any family or other relationship between the deceased and the eligible person including the nature and length of the relationship;
- any obligations or responsibilities the deceased had to the eligible person, the beneficiaries of the estate and to any other eligible persons;
- the size and nature of the estate;
- the financial resources, earning capacity and financial needs of the eligible person, the beneficiaries of the estate and of any other eligible persons;
- any physical, mental or intellectual disability of any eligible person or any beneficiary of the estate;
- the age of the eligible person;
- any contributions (not for adequate consideration) of the eligible person to building up the estate or to the welfare of the deceased or their family;
- any benefits previously given by the deceased to the eligible person or any beneficiary;
- whether the eligible person was being maintained (wholly or partly) by the deceased;
- the liability of any other person to maintain the eligible person;
- the character and conduct of the eligible person;
- the effect a family provision order would have on the amounts received by the other beneficiaries of the estate; and
- any other matter considered relevant by the Court.
For legal assistance in relation to making a claim against a deceased estate, or for assistance in drafting wills please contact Fleur Craig of Armour-Craig Legal on (03) 5636 4986.