Ensuring Fairness: Navigating Family Provision Claims
The principle of testamentary freedom suggests that a will maker is not constrained with regards to testamentary wishes and choices. However, chapter 3 of the Succession Act 2006 (NSW) (the Act) enables those who are related to the deceased by blood, close relationship and/or dependence, to initiate legal proceedings, seeking orders for provision or increased provision from the deceased’s estate, for maintenance, education, or advancement in life, which would be different to the deceased’s intended dispositions in their last will.
Who is eligible to make a claim?
The section 57(1) of the Act outlines the above class of persons who may be entitled to make a claim for their maintenance, education, or advancement in life as ‘eligible persons’ and ‘eligible persons’ in section 57(1) of the Act includes:
- Spouse;
- de facto partner;
- child;
- a former spouse;
- grandchildren who have been dependant on the deceased;
- a person who was a member of the same household with and dependant on the deceased; and
- a person who was living in a close personal relationship with the deceased at the time of death.
Whilst the Act does not confer on any of the ‘eligible persons’ a statutory entitlement to receive a certain portion of the deceased’s estate, an affected ‘eligible person’ could pursue Court intervention if they consider that the deceased did not adequately provide for them, particularly when they are in significant need of support.
Family provision orders
Section 59 of the Act confer discretionary powers on the Court to order provision (or increased provision) from an estate which is different from that provided under the deceased’s will, if the Court is satisfied of the inadequacy of provision, having regard to the facts known to the Court at the time the order is made.
When assessing appropriateness of a provision for an ‘eligible person’, the Court takes into account any explanations provided by the deceased in the Will for excluding a particular person as a beneficiary, however the Court will also conduct the necessary enquiries as required by the Act.
As elaborated by McLaughlin AsJ in Worsley v Solomon [2008] NSWSC 444 a statement made by the deceased does not mean that its must unquestionably be accepted as true. such a statement may be just as inaccurate or as unreliable as a statement from a living witness, whether as the result of mistake or failure of memory or deliberate untruth.
On the other hand as pointed by Hallen J in Stanford v Stanford [2021] NSWSC citing Heyward v Fisher (Court of Appeal (NSW), Kirby P, 26 April 1985 unrep) the role of the Court is not to address wounded feelings or heal the pain of disappointed expectations of the applicant.
Case law in this area indicates that when determining whether adequate provision has been made, the Court has developed a guiding principle, to uphold what is wise and just, considering community values and expectations. Some factors the Court considers when assessing the appropriateness of provision include:
- the relationship between the applicant and the deceased (including estrangement);
- the financial circumstances, present and future financial needs of the applicant;
- the size of the estate (e.g the Court would consider making a generous provision for the applicant if the estate is large);
- any financial contributions made by the applicant;
- any contributions to the deceased person’s welfare by the applicant.
The case of Kemperman v Antonenas [2021] NSWSC 1555 is an example where the Court looked into relationship between the applicant and the deceased, in particular the estrangement between the applicant and the deceased but due to the needs and circumstances of the applicant, upheld the moral obligations of the deceased to make adequate provisions for the applicant.
Background of the case
The value of the deceased estate was approximately $1.5 million. The deceased left only a bequest of $50,000.00 and a violin to her estranged daughter Antonia Antonenas (Antonia) and gave the residue of her estate to her other two daughters in equal shares.
Antonia argued that the provision made for her in the last will of the deceased was inadequate given her medical conditions, current and future financial, medical and care needs and her lack of sufficient financial resources to meet her of future life requirements.
The other daughters contended that the estrangement justified the lesser provision.
Key considerations
In this case the Court considered the issues surrounding the character and conduct of Antonia, causes of the relationship issues that existed between Antonia and the deceased, the estrangement between Antonia and the deceased.
However, based on the following considerations, the Court determined that the initial provision in the will was inadequate for Antonia’s proper maintenance and support:
- Antonia’s age, financial hardships, various medical conditions, future earning capacity and ongoing payments relating to her medical conditions;
- the financial circumstances of the other two daughters;
- the size of the estate (the deceased’s estate was of sufficient value to allow further provision to be made without severely depleting the provision to be made to the other beneficiaries).
Key takeaway
This case highlights the importance of seeking comprehensive legal advice to navigate the complexities involved in family provision claims.
