It’s always a wise course of action for anyone that has a spouse or a child to create a will and make the appropriate provisions for their loved ones. However, with that being said, many Australians will pass away unexpectedly without making any family provision via a will, therefore, dying intestate. It’s always traumatic when a family member passes away but the distress may be exacerbated when the person passes away without making adequate provision to ensure that any dependents are looked after. However, it should be noted that all jurisdictions have legislation in place that provides for family provision orders to be issued in instances of intestacy or partial intestacy – with the courts granted the ability to intervene in circumstances where a statutory distribution may result in an inadequate provision.
The application process for family provision
In Singer v Berghouse the High Court ruled that family provision legislation involves a two-stage process when assessing an application.
The first stage calls for a determination of whether an applicant has been left without adequate provision for proper maintenance, education and advancement in life. While, the second stage arises only if a determination has been made that is favourable to the applicant, which would then make it necessary for the court to decide on what provision is to be made out of the estate of the deceased.
Explaining the two-stage process, the High Court in Singer v Berghouse outlined the process in greater detail and set out the necessary considerations that the court must make regarding an application:
- first stage: “[t]he first question is, was the provision (if any) made for the applicant “inadequate for [his or her] proper maintenance, education and advancement in life”? The difference between “adequate” and “proper” and the interrelationship which exists between “adequate provision” and “proper maintenance”… The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate for what, in all the circumstances, was the proper level of maintenance… appropriate for the applicant having regard, and nature of the deceased’s estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty….”;
- second stage: “[t]he determination of the second stage, should it arise, involves similar considerations. Indeed, in the first stage of the process, the court may need to arrive at an assessment of what, is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant. In saying that, we are mindful that there may be some circumstances in which a court could refuse to make an order notwithstanding that the applicant is found to have been left without adequate provision for the proper maintenance. Take, for example, a case like Ellis v Leeder… where there were no assets from which an order could reasonably be made and making an order could disturb the testator’s arrangements to pay creditors.”
The essential question that a court must ask itself in relation to the first step is: whether or not the applicant has been left without adequate provision for proper maintenance, as well as education and advancement in life.
In terms of the second stage, the trial judge may order a provision using his or her discretion. However, in Victoria for example under s 91(1) of the Administration and Probate Act, does make an allowance for a provision to be made to whoever the deceased had a responsibility to provide for, but is made in two sub-parts, beginning with s 91(1):
“Despite anything in this Act to the contrary, the Court may order that provision be made out of the estate of a deceased person for the proper maintenance and support of a person for whom the deceased had responsibility to make provision.”
Secondly, as Hargrave J in Herszlikowicz v Carney in the Victorian Supreme Court stated that if such a responsibility is established:
“… the court must be of the opinion that the will of the deceased does not make adequate provision for the proper maintenance and support of the applicant for the order...”
Are the only parties who can make an application for a family provision, a child or spouse of a deceased?
First and foremost, all jurisdictions within Australia make an allowance for both a current spouse and the children of the deceased to apply for an order for family provision. However, for a person who may be a former spouse, parent, grandchild, or stepchild, the application for an order for family provision can differ between the States.
It should also be highlighted that the quality and the existence of a relationship does not mean that a person is eligible for a provision to be made in their favour, nor does it give rise to the creation of a ‘moral duty’ to provide a provision to the applicant.
This article is a very general outline of family provision law. If you have any questions or concerns about an application for an order for family provision, please seek the assistance of a lawyer who will be able to assist with any enquiries you may have.
