PART 2 FAMILY PROVISION ORDERS
Updates and background for this project (Digest)
Division 1 Applications for family provision orders
2.1 All Australian jurisdictions currently restrict the range of persons who are entitled to apply for provision. The categories of persons entitled to apply for family provision orders vary considerably around Australia. Some categories have been included because of the view that those whom the deceased was supporting when he or she died should continue to be supported; others have been included because of what is seen as a moral obligation on the part of the deceased to make provision for them.1
2.2 Arbitrary lists of categories, such as those currently provided for across Australia,2 run the risk of excluding meritorious claims and of making unmeritorious claims possible.3 The National Committee observed that “there will always be deserving applicants in any category”.4
2.3 This Bill divides the persons who may apply for a family provision order into two categories:
2.4 The division into two categories follows the models established in, for example, New South Wales, which requires that the Court must first, in relation to former spouses and dependent grandchildren of the deceased or dependent members of the deceased’s household, “determine whether, in its opinion, having regard to all the circumstances of the case (whether past or present), there are factors which warrant the making of the application and shall refuse to proceed with the determination of the application and to make the order unless it is satisfied that there are those factors.”5 This requirement does not apply to surviving spouses, de facto partners or children of the deceased who are, therefore, entitled to apply as of right.
2.5 The National Committee has proposed that the list of those who are automatically entitled to apply should be limited to those categories that are unlikely to be seriously disputed, that is, husbands, wives and de facto partners and non-adult children. The remaining category of those who may apply only if the Court determines that they are entitled to do so must establish that the deceased owed them a “responsibility to provide maintenance, education or advancement in life”.
6 Family members who are entitled to make applications
(1) The following members of the family of a deceased person may apply to the Court for a family provision order in respect of the estate of the deceased person:
(a) the wife or husband of the deceased person at the time of the deceased person’s death,
(b) a person who was, at the time of the deceased person’s death, the de facto partner of the deceased person,
(c) a non-adult child of the deceased person.
(2) In this section:
non-adult child of a deceased person means a child of the deceased person who was a minor when the deceased person died or who was born after the deceased person died, but does not include a stepchild of the deceased person.
Note. Section 11 sets out the matters that the Court may consider when determining whether to make a family provision order, and the nature of any such order.
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2.7 The persons who fall within the category of people who are automatically entitled to apply for a family provision order are the deceased’s spouse or de facto partner, and non-adult children. These categories have been identified by the National Committee as being among those who would “generally have the strongest claim for support from the deceased person’s estate”.6 The National Committee observed:
During the life of the deceased person, his or her spouse and children would usually have been in a relationship with the deceased person whereby the deceased person was, by virtue of the relationship alone, regularly under a duty to support the spouse and/or children. During the deceased person’s life that duty would often have been a legal as well as a moral duty.7
2.8 The categories of husband or wife and child are also the easiest relationships to define and prove.8
De facto partner of the deceased
2.9 Although there is a degree of consistency across the Australian jurisdictions with respect to the eligibility of de facto partners to apply for family provision, the various jurisdictions still use a range of different terms9 and criteria for establishing such relationships.10 In light of this diversity, the National Committee, while agreeing to include de facto partners among those who are automatically entitled to apply, decided to leave the definition of de facto partner to the relevant legislation of each jurisdiction.11 The definition of “de facto partner” is discussed in the commentary to clause 3.
Non-adult child of the deceased person
2.10 In allowing children of the deceased the automatic right to apply for a family provision order, no Australian jurisdiction currently imposes an age limit on applicants. In New South Wales, for example, the relevant provision simply refers to a “child of the deceased person”.12
2.11 Clause 6(1)(c) therefore represents a restriction on one of the traditional categories of those entitled to apply as of right, in that only non-adult children are included. The Court must consider the position of adult children in accordance with clause 7.
2.12 Such a provision places the entitlement to apply as of right clearly within “a maintenance framework of parental responsibilities”.13 The National Committee saw this new provision as moving against the trend of the Courts in recent years to make provision for able-bodied adult children of the deceased.14 The National Committee concluded that non-adult children would “generally have a far greater moral claim to the deceased person’s estate than adult children”.15
2.13 Stepchildren. The definition of “non-adult child” in cl 6(2) does not include stepchildren who have been included in the lists of those eligible to apply in some jurisdictions.16 The National Committee decided not to include stepchildren because of the “definitional difficulties which may arise which would lead to further uncertainty”.17 Such difficulties might include whether some level of dependency would need to be found and the question about what to do in situations where the parent and step-parent have divorced.18 Step-children, may, nevertheless may make application if they meet the requirements of cl 7.
2.14 To an extent, this provision follows the Victorian legislation which no longer lists categories of persons entitled to apply for a family provision order but rather allows the Court to order that provision be made for “the proper maintenance and support of a person for whom the deceased had responsibility to make provision”.19 The Bill differs from the Victorian model in that cl 6 also provides a limited list of categories of people who are automatically eligible to apply for family provision orders.20 The National Committee decided against including any further list of categories within the category of those for whom the deceased “had responsibility to make provision”.
2.15 Clause 11(1), below, lists the matters the Court must consider in determining whether a person is eligible to apply for a family provision order.
2.16 The Victorian Court of Appeal has recently considered the meaning of “responsibility” in the context of the Victorian provisions. It was held that the deceased’s responsibility must be determined in accordance with the statutory criteria in Administration and Probate Act 1958 (Vic) s 91(4)(e)-(p).21 It was further noted that, while “responsibility” connotes what is essentially a “moral” responsibility or duty, the deceased’s “moral” duty “cannot be a substitute for the criteria enumerated in the statute”.22
2.17 This broad category can be compared with the current New South Wales provision that includes in the definition of an eligible person, a person “who was, at any particular time, wholly or partly dependent upon the deceased person; and …was, at that particular time or at any other time, a member of the household of which the deceased person was a member”.23 While, like the proposed section, this New South Wales provision moves away from the traditional approach of nominating categories of family members, it may prove inadequate in a number of ways identified by the National Committee:
It is possible that a person who was not dependent upon the deceased person could have a strong moral claim to maintenance and support from the deceased person’s estate. Similarly, being a member of the deceased person’s household is not necessarily an indication that the deceased person owed the person a responsibility of maintenance and support upon the deceased person’s death.24
2.18 The National Committee considered that this new category would allow “deserving” persons to apply for a family provision order while at the same time providing the means whereby the Courts could bring proceedings to a timely end if an applicant was unable to establish that the deceased owed them a responsibility to provide for their maintenance and support.25
2.19 The Victorian Supreme Court has determined that, on the facts of the individual cases, persons within the following categories have had an entitlement to family provision:
• brother of the deceased;26
• adult son of the deceased;27 and
• adult daughter of the deceased.28
2.20 In other cases, the Court has found that persons in the following categories have not been entitled to orders for family provision:
• sister of the deceased;29
• long term friend of the deceased;30
• grandchildren of the deceased;31
• adult natural child of the deceased, adopted out in infancy;32 and
• business partner of the deceased.33
Each of the persons in these categories could conceivably have been eligible on different facts, depending on such factors listed in cl 11(1) as may be relevant.
2.21 The range of persons who may conceivably apply for family provision under this proposed provision may render necessary costs provisions of the sort that were introduced in Victoria at the same time as the equivalent provision was introduced in that State.34 The breadth of this proposed provision has also influenced recommendations in relation to cl 535 and cl 11(2)(m), cl 44(1)(b) and cl 46.36
8 Applications for persons lacking capacity
(1) This section applies to the following persons:
(a) the administrator of the estate of the deceased person,
(b) [insert appropriate reference to litigation guardian/guardian ad litem/guardian] of a person,
(c) [insert reference to appropriate equivalent to the public trustee in jurisdiction],
(d) [insert reference to appropriate officer of jurisdiction in relation to children in care],
(e) [insert reference to appropriate officer under mental health legislation of jurisdiction].
(2) A person to whom this section applies may apply to the Court:
(a) for a family provision order on behalf of a person who is or may be entitled to apply for such an order but who lacks capacity to do so, or
(b) for advice or directions as to whether an application for a family provision order ought to be made by or on behalf of any such person.
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2.22 This provision allows the persons identified in cl 8(1) to apply to the Court for a family provision order on behalf of a person who lacks the capacity to do so and also to apply for advice or directions. Together with cl 9(4), it is based on Succession Act 1981 (Qld) s 41(7).37
9 Time limit for applications
(1) An application for a family provision order must be made not later than 12 months after the death of the deceased person, unless the Court otherwise directs.
(2) If an application for a family provision order has been made by any person, it is, for the purposes of determining whether any subsequent application is made within the required time, taken to have been made by all persons who are entitled to make an application for a family provision order in respect of the estate concerned.
(3) An application is taken to be made on the day it is filed in the Court’s registry.
(4) For the purposes of this section, an application for advice or directions made under section 8 is taken to be an application for a family provision order.
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2.23 Clause 9(1), which sets the time limit for making a family provision application at 12 months from the date of death of the deceased, balances the need for there not to be undue delay in the administration of an estate with the need to ensure that those with a genuine claim have sufficient time within which to make it.38 The time limit in New South Wales is currently 18 months.39
Commencement of time limit
2.24 In commencing the time period at the date of death of the deceased, the National Committee is following similar provisions in Queensland40 and New South Wales.41 The alternative would have been to commence the period with the granting of probate or letters of administration.42 This option was rejected as unworkable since informally administered estates would then be subject to a family provision application at any time.43
2.25 Clause 48, below, allows the Court to determine a date of death for the purposes of this section if the date of death of the deceased is uncertain.
Duration of time limit
2.26 The 12 month period is a compromise between the shorter period of nine months from death in Queensland44 and the longer period of 18 months from death in New South Wales.45 The National Committee considered the 12 month time limit appropriate “both in the context of the efficient administration of the estate and from the point of view of certainty on the part of those with an interest in the distribution of the estate”.46
Discretion to extend time
2.27 The limitation is to apply “unless the Court otherwise directs”. All jurisdictions make provision allowing for the Court to extend time when the circumstances require it. This discretion is, for the most part, unfettered.47 Some jurisdictions require that an application for extension must be made before “final” or “full” distribution.48 However, the National Committee preferred to follow the jurisdictions which allow an extension to be applied for at any time.49 This would obviate the need to determine whether the application had been made before the “final” or “full” distribution of the estate.50
2.28 This part of the provision is based on Succession Act 1981 (Qld) s 41(8) which states that the limitation applies “unless the court otherwise directs”.
2.29 It was decided not to include a provision specifically requiring that cause be shown before the Court could grant an extension51 on the grounds that, even where the Court is given an unfettered discretion, applicants will generally be required to satisfy the Court that the delay in making the applications ought to be excused.52
2.30 Clause 9(2) is based on Succession Act 1981 (Qld) s 41(6). Western Australia has a similar provision.53 Both differ from the equivalent Tasmanian provision which extends the limitation period for the others only if the Court so orders.54 The Queensland provision was also preferred over the equivalent provision in New South Wales which allows the Court, when it makes an order in favour of an eligible applicant, also to make an order in favour of any other eligible person.55
2.31 Clause 9(3) states that an application is taken to be made on the day it is filed in the Court’s registry. In most jurisdictions, an application is taken to have been made on the date that the originating process was filed in the registry.56 The National Committee decided to follow the Northern Territory and Australian Capital Territory in making express provision for this position.57 The South Australian approach that the application is taken to have been made when the summons was served on the administrator of the estate58 was rejected because of difficulties that could arise in the service of process, especially in situations where substituted service might have to be applied for.59
2.32 Clause 9(4) is based on the final part of Succession Act 1981 (Qld) s 41(7). It ensures that, so long as the representative of someone who lacks capacity to apply for a family provision order applies to the Court for direction or advice within the time limit set out in cl 9(1), any subsequent application for an order will be taken to have been made within time.
Division 2 Determination of applications
10 When family provision order may be made
(1) The Court may, on application under Division 1, make a family provision order in respect of the estate of a deceased person, if the Court is satisfied that:
(a) the person in whose favour the order is to be made is a person who may make an application, or is a person on whose behalf such an application may be made, and
(b) at the time that the Court is determining whether or not to make the order, adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made is not made by the provision made in the will of the deceased person, or the operation of the intestacy rules in relation to the estate of the deceased person, or both.
(2) The Court may make such order for provision out of the estate of the deceased person as the Court thinks ought to be made for the maintenance, education or advancement in life of the person in whose favour the order is made, having regard to the facts known to the Court at the time the order is made.
Note. Property that may be the subject of a family provision order is set out in Division 3. This Part applies to property, including property that is designated as notional estate (see section 24). Part 3 sets out property that may be designated as part of the notional estate of a deceased person for the purpose of making a family provision order.
(3) The Court may make a family provision order in favour of a person in whose favour a family provision order has previously been made in relation to the same estate only if:
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2.33 Clause 10(1) and (2) are based substantially on Family Provision Act 1982 (NSW) s 7 and s 9(2). They are concerned with assessing whether the deceased has made “adequate provision for the proper maintenance, education or advancement in life” of persons for whom the deceased ought to have made provision and the making of such provision.
2.34 The wording in cl 10(1)(b) in relation to the adequacy of the provision made out of the estate of the deceased is different to that in Family Provision Act 1982 (NSW) s 9(2)(a). However, there is no material difference between the provisions. The current New South Wales provision refers simply to provision “out of the person’s estate” whereas cl 10(1)(b) refers to provision “made in the will of the deceased person, or the operation of the intestacy rules in relation to the estate of the deceased person, or both”. The phrase “or both” has been included to cover situations of partial intestacy where the will of the deceased has some effect but fails effectively to dispose of all of the estate of the deceased.
2.35 The use of the term “adequate” in cl 10(1)(b) allows for reference to be made to the case law that has built up around the term “inadequate” in the New South Wales legislation.60
Maintenance, education and advancement in life
2.36 The wording “maintenance, education and advancement in life” used in cl 10(1) and cl 10(2) has been adopted from the relevant New South Wales provision.61 The phrase “maintenance, education and (or) advancement in life” is also used in the Australian Capital Territory,62 Northern Territory63 and South Australia.64 Queensland, Victoria and Tasmania use the phrase “maintenance and support”.65 Western Australia refers to “maintenance, support, education or advancement in life”.66 It has been suggested that “support”, “maintenance” and “education” are words traditionally associated with expenditure of income, whereas “advancement in life” has been associated with the expenditure of capital (for example, the setting up of someone in business or upon marriage).67
Court’s discretion to order provision
2.37 Clause 10(2) provides that “the Court may make such order for provision out of the estate of the deceased person as the Court thinks ought to be made…”. This confers a wide discretion, subject only to the consideration of the facts at the date the order is made. (See the list of matters to be considered by the Court in cl 11, below.) In granting a wide discretion, this provision follows the general effect of provisions in all Australian jurisdictions.68 A phrase along the lines of “having regard to all the circumstances of the case”, which has been included in some jurisdictions,69 has been omitted from the Bill on the grounds that the words were unlikely significantly to restrict the Court’s discretion.70
Circumstances at the date of the order
2.38 The phrase “having regard to the facts known to the Court at the time the order is made” is to the same effect as the equivalent New South Wales provision.71 In most other jurisdictions at present, the question of whether adequate provision has been made and what provision ought to be made must be determined at the date of death of the deceased.72 The National Committee could see no reason why the decision should be made, taking into account circumstances at the date of death, but to the exclusion of facts and circumstances subsequently known to the Court at the time of the order.73
Additional provision
2.39 As a general rule, a family provision order, once made, is final. The National Committee favoured finality in relation to family provision orders once made. In particular, the National Committee was conscious of the fact that “in attempting to provide redress for applicants in exceptional cases, there is a risk of encouraging unmeritorious litigation, the effect of which can be to erode the assets of an estate”.74 However, two limited exceptions to this finality have been set out in Clause 10(3) of the draft Bill. Reference should also be made to the variation and revocation provisions contained in cl 21 and the restrictions on out of time and additional applications in cl 41.
2.40 Substantial detrimental change in circumstances. Clause 10(3)(a) allows the Court to make a further order for family provision where there has been a substantial detrimental change in the circumstances of a person in whose favour a family provision order has already been made. This is based on Family Provision Act 1982 (NSW) s 8. It is clearly limited to those who have already received the benefit of a prior family provision order or orders.75 This is consistent with the recommendation of the New South Wales Law Reform Commission in 1977, which sought to deal with the problem that, once a family provision order was made in favour of a particular person, the Court could not, in absence of specific legislative provision, order further provision.76
2.41 Undisclosed property. Clause 10(3)(b) allows the Court to make a further order for family provision where the existence of certain property in an estate (or notional estate) of the deceased was not known at the time of the earlier order and the undisclosed property would have increased the value of the estate substantially.77 Such an additional order has been restricted to situations where the Court has already made an order for family provision that is favourable to the applicant. In recommending this provision, the National Committee did not seek to restrict an applicant’s right to apply by reference to the particular reason why the property’s existence was not disclosed. The awareness of the existence of any undisclosed property on the part of an applicant was considered a factor that the Court could take into account in making the additional order rather than a factor leading to automatic disqualification of the applicant.78
11 Matters to be considered by Court
(1) The Court may have regard to the matters set out in subsection (2) for the purpose of determining:
(a) whether a person is entitled to make an application under section 7, and
(b) whether, in the case of any application under Division 1, to make a family provision order and the nature of any such order.
(2) The following matters may be considered by the Court:
(a) any family or other relationship between the person in whose favour the order is sought to be made (the proposed beneficiary) and the deceased person, including the nature and duration of the relationship,
(b) the nature and extent of any obligations or responsibilities owed by the deceased person to the proposed beneficiary, to any other person in respect of whom an application has been made for a family provision order or to any beneficiary of the deceased person’s estate,
(c) the nature and extent of the deceased person’s estate (including any property that is, or could be, designated as notional estate of the deceased person) and of any liabilities or charges to which the estate is subject, as in existence when the application is being considered,
(d) the financial resources (including earning capacity) and financial needs, both present and future, of the proposed beneficiary, of any other person in respect of whom an application has been made for a family provision order or of any beneficiary of the deceased person’s estate,
(e) any physical, intellectual or mental disability of the proposed beneficiary, any other person in respect of whom an application has been made for a family provision order or any beneficiary of the deceased person’s estate that is in existence when the application is being considered or that may reasonably be anticipated,
(f) the age of the proposed beneficiary when the application is being considered,
(g) any contribution, whether made before or after the deceased person’s death, for which adequate consideration (not including any pension or other benefit) was not received, by the proposed beneficiary to the acquisition, conservation and improvement of the estate of the deceased person or to the welfare of the deceased person or the deceased person’s family,
(h) any provision made for the proposed beneficiary by the deceased person, either during the deceased person’s lifetime or any provision made from the deceased person’s estate,
(i) the date of the will (if any) of the deceased person and the circumstances in which the will was made,
(j) whether the proposed beneficiary was being maintained, either wholly or partly, by the deceased person before the deceased person’s death and, if the Court considers it relevant, the extent to which and the basis on which the deceased person did so,
(k) whether any other person is liable to support the proposed beneficiary,
(l) the character and conduct of the proposed beneficiary or any other person before and after the death of the deceased person,
(m) any relevant Aboriginal or Torres Strait Islander customary law or other customary law,
(n) any other matter the Court considers relevant, including matters in existence at the time of the deceased person’s death or at the time the application is being considered.
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2.42 Clause 11 provides a list of matters to be taken into account in two situations:
• when the Court must determine eligibility to apply to the Court for a family provision order under cl 7; and
• when the Court must determine whether a family provision order should be made under cl 10 and the quantum of that award.
The items in the list are mostly based on Administration and Probate Act 1958 (Vic) s 91(4)(e)-(p), although there are some additions.
2.43 Clause 11, however, differs from the Victorian provision in that the Victorian provision states that the Court, in making its determination, “must have regard to” the matters in the list, whereas cl 11 states that the matters in the list “may be considered by the Court”. The National Committee preferred the approach in cl 11 on the following grounds:
If the Court were required to take into account every matter in the list… a result may be that appeals will be sought on the basis that the Court failed to take a particular matter into account or failed to give equal consideration to each matter - irrespective of its relevance in the particular case.79
The matters outlined are to be taken into account in determining both whether an applicant was owed a responsibility by the deceased and whether any provision made by the deceased was adequate.80
Family or other relationships - paragraph (a)
2.44 Clause 11(2)(a) is based on Administration and Probate Act 1958 (Vic) s 91(4)(e).
Obligations and responsibilities of the deceased - paragraph (b)
2.45 Clause 11(2)(b) is based on Administration and Probate Act 1958 (Vic) s 91(4)(f).
Nature and extent of the estate - paragraph (c)
2.46 Clause 11(2)(c) is based on Administration and Probate Act 1958 (Vic) s 91(4)(g). However, it also refers to the notional estate of the deceased, which is not provided for in the Victorian scheme.
Financial resources and needs of others - paragraph (d)
2.47 Clause 11(2)(d) is based on Administration and Probate Act 1958 (Vic) s 91(4)(h).
Physical, intellectual or mental disability - paragraph (e)
2.48 Clause 11(2)(e) is based on Administration and Probate Act 1958 (Vic) s 91(4)(i).
Age - paragraph (f)
2.49 Clause 11(2)(f) is based on Administration and Probate Act 1958 (Vic) s 91(4)(j).
Benefits received by the deceased - paragraph (g)
2.50 Clause 11(2)(g) is based on Administration and Probate Act 1958 (Vic) s 91(4)(k). However, unlike the Victorian provision, it expressly excludes pensions and other benefits from the concept of “adequate consideration”. The National Committee was of the view that a carer’s pension should not be considered valuable consideration for the applicant’s contribution to the deceased’s welfare since it is “more compensation for income that the carer might otherwise have earned than it is remuneration”.81
Any provision in favour of the applicant - paragraph (h)
2.51 In considering the Victorian provision contained in Administration and Probate Act 1958 (Vic) s 91(4)(l), which refers to “any benefits previously given”, the National Committee preferred a provision based upon one in the Family Provision Act 1982 (NSW) which refers to:
the provision (if any) made in favour of the eligible person by the deceased person either during the person’s lifetime or out of the person’s estate.82
The will of the deceased - paragraph (i)
2.52 This is a provision without antecedent, which allows the Court to consider:
2.53 The date of any will. The date of any will of the deceased is relevant in order to take into account change of circumstances, especially if the will was made a long time ago.83
2.54 The circumstances in which the will was made. While the National Committee noted that the circumstances of the making of a will are strictly irrelevant (except in so far as they may go to the validity of the document), it suggested that such matters may be of relevance to family provision proceedings:
A will made in circumstances of great secrecy may be unassailable in probate law but those circumstances, if admissible in family provision proceedings, may illuminate an imbalance of fairness in the distribution of the estate or disclose a state of affairs in which the testator did not really have an opportunity to consider all the claims incumbent upon her or him.84
The National Committee decided to include both these factors in the list of matters to be considered by the Court in case the Court should, in absence of any provision, have to address an argument that it cannot consider such matters because they are not included in the list.85
Maintenance of the applicant by the deceased - paragraph (j)
2.55 Clause 11(2)(j) is based on Administration and Probate Act 1958 (Vic) s 91(4)(m).
Liability of another person to support the applicant - paragraph (k)
2.56 Clause 11(2)(k) is based on Administration and Probate Act 1958 (Vic) s 91(4)(n).
Character and conduct - paragraph (l)
2.57 This item is based on Administration and Probate Act 1958 (Vic) s 91(4)(o) which allows the Court to consider “the character and conduct of the applicant or any other person”. This provision has been included in the list of matters the Court may consider in determining both that the deceased owed a responsibility to maintain the applicant and the sufficiency of that provision.86 However, this provision goes further than the Victorian provision and any other similar provisions, in that the Court may consider conduct “before and after” the death of the deceased, and the Court may also consider the character and conduct, not only of the applicant, but also of any other person.87 In New South Wales, the Court, in deciding what provision, if any, to make, may consider the character and conduct of an applicant both before and after the death of the deceased.88
2.58 With this provision, which allows the Court to take character and conduct into account, there is no need for a separate provision, like those in many Australian jurisdictions,89 to enable the Court to refuse to make an order on the basis of the character and conduct of the applicant.90
2.59 The conduct of “any other person” could, for example, refer to a relative of the proposed beneficiary who concealed the will in which the deceased cut the proposed beneficiary out, or refer to any other person who is liable to support the proposed beneficiary.91
2.60 The National Committee noted that some conduct may result in the Court reducing the amount of the award rather than simply refusing to make the order. The National Committee, however, decided that it was not necessary to spell out that conduct could lead to a reduction in the amount of an award since “the Court’s discretion would be wide enough to make the most appropriate award in all the circumstances”.92
Customary law - paragraph (m)
2.61 This item is not included in the Victorian provision. In adding consideration of “any relevant Aboriginal or Torres Strait Islander customary law or other customary law”, the National Committee “considered it important to enable the Court to take into account the deceased person’s and the applicant’s membership of a particular community and the customary practices and customary laws which help define that community in determining whether the deceased person owed the applicant a [relevant] responsibility”.93 However, the National Committee did not consider it appropriate to specify “what customary practices and customary laws should be taken into account by the Court when determining a person’s eligibility to apply for family provision from the estate of a deceased member of a particular community”, especially bearing in mind that customary practices and laws will vary within and between communities, and not every member of a community will feel bound by its customary practices and laws.94
Any other matter - paragraph (n)
2.62 This first part of this paragraph is based on Administration and Probate Act 1958 (Vic) s 91(4)(p), which merely refers to “any other matter the Court considers relevant”. The remainder of the paragraph allows the Court to consider matters that were not only in existence at the time of the death of the deceased, but also matters in existence at the time the application is being considered.
2.63 This provision, which is based on Family Provision Act 1982 (NSW) s 20, was originally introduced to deal with a decision of the New South Wales Supreme Court that the Court should take into account the deceased’s duty to all eligible persons even if they had not made an application.95 This potentially meant that applicants could be denied provision if applicants with stronger claims existed, even if the people with stronger claims had not made an application.96
2.64 Clause 12 differs slightly from the current New South Wales provision in that it makes clear that the interests of existing beneficiaries (either under the will or on intestacy) must be taken into account, even if they have not made an application for family provision.97
13 Interim family provision orders
(1) The Court may make an interim family provision order before it has fully considered an application for a family provision order if it is of the opinion that no less provision than that proposed in the interim order would be made in favour of the person concerned in the final order.
(2) After making an interim family provision order, the Court must proceed to finally determine the application for a family provision order by confirming, revoking or varying the interim order.
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2.65 This provision, which allows the Court to make an interim order for family provision before it has made a final decision, is based on Family Provision Act 1982 (NSW) s 9(5) and s 9(6).
2.66 An express power to make an interim order is necessary because of the doubt that the Court could make an interim order without such an express power.98 The National Committee concluded that such a power would be desirable in some circumstances:
In some cases, an applicant for family provision may have a pressing need for financial support pending the final determination of his or her application. Alternatively, although an applicant may not demonstrate such a need, it may be clear to the court that an applicant will be entitled to at least a certain amount by way of provision out of the deceased’s estate. In those circumstances, the court may be of the view that the applicant should not be deprived of that amount pending the final determination of the application.99
Division 3 Property that may be used for family provision orders
14 Property that may be used for family provision orders
(1) A family provision order may be made in respect of the estate of a deceased person.
(2) If the deceased person died leaving a will, the estate of the deceased person includes property that would, on a grant of probate of the will, vest in the executor of the will, or would on a grant of administration with the will annexed, vest in the administrator appointed under that grant.
(3) A family provision order may not be made in relation to property of the estate that has been distributed, except as provided by subsection (5).
(4) Where property in the estate of a deceased person is held by the administrator of that estate as trustee for a person or for a charitable or other purpose, the property is to be treated, for the purposes of this Act, as not having been distributed unless it is vested in interest in that person or for that purpose.
(5) A family provision order may be made in relation to property that is not part of the estate of a deceased person, or that has been distributed, if it is designated as notional estate of the deceased person by an order under Part 3.
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2.67 This clause identifies the property that may be subject to an order for family provision. The property that is made available is usually the property in the deceased’s estate. In some circumstances, property that has ceased to be part of the deceased’s estate or has been distributed, either before or after death, may also be subject to an order for family provision. This is referred to as “notional estate”.
2.68 Clause 14(2) is based on the definition of “estate” in Family Provision Act 1982 (NSW) s 6(1).
2.69 Clause 14(3) is based on Family Provision Act 1982 (NSW) s 6(4).
Property held by administrator as trustee
2.70 Clause 14(4), which is based on Family Provision Act 1982 (NSW) s 6(5), was included by the National Committee on the grounds that it “provides certainty in determining whether property that is held on trust by a personal representative remains part of an estate or whether it has been distributed”.100 (Note that property that has already been distributed from a deceased estate may be made subject of a notional estate order.)101
Notional estate
2.71 Clause 14(5) refers to property that has been designated “notional estate” by an order under Part 3.
15 Orders may affect property in or outside jurisdiction
A family provision order may be made in respect of property situated in or outside [insert name of jurisdiction] when, or at any time after, the order is made, whether or not the deceased person was, at the time of death, domiciled in [insert name of jurisdiction].
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2.72 Clause 15 is based on Family Provision Act 1982 (NSW) s 11(1)(b).102
Division 4 General provisions relating to family provision orders
16 Nature of orders
(1) A family provision order must specify:
(a) the person or persons for whom provision is to be made, and
(b) the amount and nature of the provision, and
(c) the manner in which the provision is to be provided and the part or parts of the estate out of which it is to be provided, and
(d) any conditions, restrictions or limitations imposed by the Court.
(2) A family provision order may require the provision to be made in one or more of the following ways:
(a) by payment of a lump sum of money,
(b) by periodic payments of money,
(c) by application of specified existing or future property,
(d) by way of an absolute interest, or a limited interest only, in property,
(e) by way of property set aside as a class fund for the benefit of 2 or more persons,
(f) in any other manner the Court thinks fit.
(3) If provision is to be made by payment of an amount of money, the family provision order must specify whether interest is payable on the whole or any part of the amount payable for the period, and, if so, the period during which interest is payable and the rate of the interest.
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2.73 Clause 16(1) sets out the matters that the Court must specify in making a family provision order. The paragraphs are based chiefly on Administration and Probate Act 1958 (Vic) s 97(1).103
2.74 Clause 16(2), which sets out the ways in which the Court may require the provision to be made, is based on Family Provision Act 1982 (NSW) s 11(1)(a).
2.75 Clause 16(3), which makes provision for interest on any sum ordered, is based on Family Provision Act 1982 (NSW) s 11(1)(d). The National Committee considered that the inclusion of this provision renders a provision to the effect of Family Provision Act 1982 (NSW) s 15(3), which deals with interest in relation to consequential and ancillary orders, unnecessary.104
2.76 The National Committee concluded, in relation to cl 16, that:
Such a provision should assist the Court and practitioners and will ensure that the Court addresses significant matters which it otherwise may have disregarded. For example, unless such a list is included, Courts may be reluctant to make periodic orders or orders on terms.105
17 Consequential and ancillary orders
The Court may, in addition to, or as part of, a family provision order, make orders for or with respect to all or any of the following matters for the purpose of giving effect to the family provision order:
(a) the transfer of property of the estate directly to the person in whose favour the order is made, or to any other person as trustee for that person,
(b) the constitution of any person by whom property of the estate is held as a trustee of that property,
(c) the appointment of a trustee of property of the estate,
(d) the powers and duties of a trustee of property of the estate, including any trustee constituted or appointed under this section,
(e) the vesting in any person of property of the estate,
(f) the exercise of a right or power to obtain property for the estate,
(g) the sale of or dealing with property of the estate,
(h) the disposal of the proceeds of any sale or other realising of property of the estate,
(i) the securing, either wholly or partially, of the due performance of an order under this Part,
(j) the management of the property of the estate,
(k) the execution of any necessary conveyance, document or instrument, the production of documents of title or the doing of such other things as the Court thinks necessary in relation to the performance of the order,
(l) any other matter the Court thinks necessary.
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2.77 This clause, which allows the Court to make consequential or ancillary orders to give full effect to an order for family provision, is based on Family Provision Act 1982 (NSW) s 15(1). Clause 20, below, applies particular provisions of the law relating to trustees to the vesting of any property under this clause.
18 Undertakings to restore property
(1) The Court may make a family provision order subject to a condition that the person in whose favour the order is made is to enter into an undertaking, or give security, that, if the order is revoked because the deceased person was not deceased when the order was made, the person will restore any property received under the order, or otherwise make restitution, in accordance with any order of the Court made on the revocation.
(2) In this section:
deceased person means the person (whether or not deceased) from whose estate a family provision order is made.
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2.78 This clause allows conditions to be imposed on an order for family provision in circumstances where the death of the “deceased” is presumed. It is based on Family Provision Act 1982 (NSW) s 18. The National Committee considered that “such a provision, though rarely used, may be particularly relevant in times of war or community dislocation”.106
19 Payment for exoneration from liability for orders
(1) The Court may, as part of a family provision order, or at any time, on the application of a beneficiary of the estate of a deceased person, by order:
(a) fix a periodic payment or lump sum payable by a beneficiary of an estate affected by a family provision order to represent the proportion of the property in the estate affected by the family provision order that is borne by the beneficiary’s portion of the estate, and
(b) exonerate the beneficiary’s portion of the estate from any further liability under the family provision order, on condition that payment is made as directed by the Court.
(2) Without limiting subsection (1), in making any order under this section, the Court may do any of the following:
(a) specify the person to whom the payment or lump sum is to be paid,
(b) specify how any periodic payment is to be secured,
(c) specify how any lump sum is to be invested for the benefit of any proposed beneficiary.
Note. Section 43 enables the Court to replace property in the estate or notional estate of a deceased person that has been, or is proposed to be, affected by a family provision order with property offered in substitution for the affected property.
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2.79 Clause 19 is based on Succession Act 1981 (Qld) s 41(5). A provision of this kind will ensure minimal disruption to other parties’ actual positions or expectations in relation to certain property, by allowing beneficiaries of an estate to apply to make periodic payments to an applicant, and thereby save some property from being subject to an order for family provision.107
2.80 The National Committee decided that a provision along the lines of Succession Act 1981 (Qld) s 41(5) be included in the model legislation together with a provision along the lines of Family Provision Act 1982 (NSW) s 30.108 Clause 43, below, which is based on Family Provision Act 1982 (NSW) s 30, allows for other property to be offered in substitution for property that might otherwise be subject to a family provision order.
20 Effect of order vesting property in estate
[Each jurisdiction may determine whether to include a provision applying particular provisions of its trust law to an order under section 17.]
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2.81 Clause 20 envisages a provision in the nature of Family Provision Act 1982 (NSW) s 15(2). Section 15(2) provides:
The provisions of section 78 (except subsection (1)) and 79 of the Trustee Act 1925 apply to and in relation to an order under subsection (1) for the vesting of the property in a person in the same way as they apply to and in relation to a vesting order referred to in those provisions and, in the case of section 78 (2) of that Act, as if the provisions of subsection (1) and the other provisions of this Act relating to the making of orders under this Act were contained in Part 3 of that Act.
If adopted here, such a provision would apply the relevant provisions of the law relating to trustees to the vesting of property under cl 17. Trustee Act 1925 (NSW) s 78 and s 79 deal with the effect of vesting orders relating to the conveyance or release of property.
21 Variation and revocation of family provision orders
(1) A family provision order may be varied or revoked by the Court only in accordance with this Act.
(2) The Court may, by order, vary or revoke a family provision order so as to allow provision to be made in favour of another person wholly or partly from all or any property affected by the order.
(3) The Court must not vary or revoke a family provision order so as to allow provision to be made in favour of another person unless that person shows sufficient cause for not having applied for a family provision order before the order sought to be varied or revoked was made.
(4) A family provision order is revoked if the grant of administration in respect of the estate of the deceased person is revoked or rescinded, unless the Court otherwise provides when revoking or rescinding the grant.
Note. The Court may also vary a family provision order under sections 13 and 43.
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2.82 Sub-clauses 21(1), (2) and (4) are based on Family Provision Act 1982 (NSW) s 19(1)-s 19(3).
2.83 The National Committee favoured a provision to the effect of Family Provision Act 1982 (NSW) s 19 with respect to the variation of orders.109
2.84 Clause 21(3) has its origins in Family Provision Act 1982 (NSW) s 20(4) to which s 19(2) is stated to be subject.
22 Variation and revocation of other orders
If a family provision order is varied or revoked, the Court may:
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2.85 Clause 22, which allows for the variation and revocation of consequential and ancillary orders,110 is based on Family Provision Act 1982 (NSW) s 19(4). The National Committee favoured a provision to the effect of s 19 with respect to the variation of orders.111
23 Effect of family provision order
A family provision order takes effect, unless the Court otherwise directs, as if the provision was made:
(a) in a codicil to the will of the deceased person, if the deceased person made a will, or
(b) in a will of the deceased person, if the deceased person died intestate.
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2.86 Clause 23, which sets out the effect of a family provision order, is based on Family Provision Act 1982 (NSW) s 14(1). It is not significantly different to similar provisions in most other Australian jurisdictions.112
2.87 The National Committee, in deciding to adopt this provision, observed that it would be “particularly useful in relation to the order of the payment of debts”.113
2.88 Clause 24 has been included to clarify the application of Part 2 with respect to interim family provision orders (see cl 13) and property designated as part of the notional estate of a deceased person (see Part 3).
FOOTNOTES
1. National Committee for Uniform Succession Laws, Report to the Standing Committee of Attorneys General on Family Provision (Queensland Law Reform Commission, Miscellaneous Paper 28, 1997) (“MP 28”) at 8.
2. See the list of specific categories of person currently entitled to apply for a family provision order: MP 28 at 187-206.
3. MP 28 at 8-9.
4. MP 28 at 8.
5. Family Provision Act 1982 (NSW) s 9(1).
6. MP 28 at 9. See also National Committee for Uniform Succession Laws, Family Provision: Supplementary Report to the Standing Committee of Attorneys General (Queensland Law Reform Commission, Report 58, 2004) (“R 58”) at para 2.17-2.19.
7. MP 28 at 9.
8. MP 28 at 9.
9. Most jurisdictions refer to de facto partnerships or relationships: Property (Relationships) Act 1984 (NSW) s 4; Interpretation Act (NT) s 19A(3); De Facto Relationships Act (NT) s 3(1) and s 3A; Acts Interpretation Act 1954 (Qld) s 32DA; Interpretation Act 1984 (WA) s 13A; but some refer to domestic partners or partnerships: Legislation Act 2001 (ACT) s 169; Property Law Act 1958 (Vic) s 275(1); and one refers to significant relationships: Relationships Act 2003 (Tas) s 4.
10. See Legislation Act 2001 (ACT) s 169(2); Property (Relationships) Act 1984 (NSW) s 4(2); De Facto Relationships Act (NT) s 3A(2); Acts Interpretation Act 1954 (Qld) s 32DA(2); Relationships Act 2003 (Tas) s 4(3); Property Law Act 1958 (Vic) s 275(2); Interpretation Act 1984 (WA) s 13A(2). In Tasmania, relationships may now also be proved by registration: Relationships Act 2003 (Tas) s 4(2).
11. R 58 at 9.
12. Family Provision Act 1982 (NSW) s 6(1) definition of “eligible person”.
13. R F Atherton, Family Provision (Victorian Attorney-General’s Law Reform Advisory Council, Expert Report 1, 1997) at para 3.15
14. MP 28 at 10-13.
15. MP 28 at 13.
16. Family Provision Act 1969 (ACT) s 7(1)(d) and s 7(2); Family Provision Act 1970 (NT) s 7(1)(d) and s 7(2)(b); Succession Act 1981 (Qld) s 40 (definition of “child”); Inheritance (Family Provision) Act 1972 (SA) s 6(g); Testator’s Family Maintenance Act 1912 (Tas) s 2(1).
17. MP 28 at 13.
18. MP 28 at 197.
19. Administration and Probate Act 1958 (Vic) s 91(1).
20. See para 2.7-2.12 above.
21. Equivalent, in broad terms, to the criteria enumerated in cl 11, below.
22. Coombes v Ward [2004] VSCA 51 at para 12, 13, 28.
23. Family Provision Act 1982 (NSW) s 6(1), definition of “eligible person”.
24. MP 28 at 15.
25. MP 28 at 20.
26. Marshall v Spillane [2001] VSC 371.
27. De Angelis v De Angelis [2003] VSC 432; Blair v Blair [2004] VSCA 149.
28. Penn v Richards [2002] VSC 378.
29. Sanderson v Bradley [2004] VSC 231.
30. Lee v Hearn [2002] 7 VR 595.
31. Leahey v Trescowthick [1999] VSC 409; Sherlock v Guest [1999] VSC 431.
32. Coombes v Ward [2004] VSCA 51.
33. Schmidt v Watkins [2002] VSC 273.
34. See Victoria, Parliamentary Debates (Hansard) Legislative Assembly, 9 October 1997 at 436. See also the commentary on cl 49, below.
35. See para 1.17, above.
36. See para 2.61, para 4.6 and para 4.20, below.
37. Compare Testator’s Family Maintenance Act 1912 (Tas) s 3(5).
38. MP 28 at 29. See also A Dickey, Family Provision after Death (Law Book Company, Sydney, 1992) at 13.
39. Family Provision Act 1982 (NSW) s 16(1)(b).
40. Succession Act 1981 (Qld) s 41(8).
41. Family Provision Act 1982 (NSW) s 16(1)(b).
42. See, eg, Family Provision Act 1970 (NT) s 9(1); Family Provision Act 1969 (ACT) s 9(1); Testator’s Family Maintenance Act 1912 (Tas) s 11(1); Inheritance (Family Provision) Act 1972 (SA) s 8(1); Administration and Probate Act 1958 (Vic) s 99; Inheritance (Family and Dependants Provision) Act 1972 (WA) s 7(2)(a).
43. MP 28 at 35.
44. Succession Act 1981 (Qld) s 41(8).
45. Family Provision Act 1982 (NSW) s 16(1)(b).
46. MP 28 at 35.
47. Except in Victoria: see Administration and Probate Act 1958 (Vic) s 99.
48. Administration and Probate Act 1958 (Vic) s 99; Inheritance (Family Provision) Act 1972 (SA) s 8(4); Testator’s Family Maintenance Act 1912 (Tas) s 11(4); Family Provision Act 1970 (NT) s 9(4); Family Provision Act 1969 (ACT) s 9(4).
49. See Family Provision Act 1982 (NSW) s 16(4); Inheritance (Family and Dependants Provision) Act 1972 (WA) s 7(2); Succession Act 1981 (Qld) s 41(8).
50. MP 28 at 37.
51. See, eg, Family Provision Act 1982 (NSW) s 16(3).
52. Coffey v Bennett [1961] VR 264; Re Walker [1967] VR 890 at 892. See R 58 at para 5.15-5.17; para 5.25-5.27.
53. Inheritance (Family and Dependants Provision) Act 1972 (WA) s 12(2).
54. Testator’s Family Maintenance Act 1912 (Tas) s 3(4).
55. Family Provision Act 1982 (NSW) s 10. See MP 28 at 44.
56. See A Dickey, Family Provision after Death (Law Book Company, Sydney, 1992) at 14.
57. Family Provision Act 1970 (NT) s 9(5); Family Provision Act 1969 (ACT) s 9(5).
58. Inheritance (Family Provision) Act 1972 (SA) s 8(6).
59. MP 28 at 38.
60. Family Provision Act 1982 (NSW) s 9(2).
61. Family Provision Act 1982 (NSW) s 7.
62. Family Provision Act 1969 (ACT) s 8(2).
63. Family Provision Act 1970 (NT) s 8(1).
64. Inheritance (Family Provision) Act 1972 (SA) s 7(1)(b).
65. Succession Act 1981 (Qld) s 41(1); Testator’s Family Maintenance Act 1912 (Tas) s 3(1); Administration and Probate Act 1958 (Vic) s 91.
66. Inheritance (Family and Dependants Provision) Act 1972 (WA) s 6(1).
67. MP 28 at 50.
68. Family Provision Act 1982 (NSW) s 7; Family Provision Act 1970 (NT) s 8(1); Family Provision Act 1969 (ACT) s 8(1); Succession Act 1981 (Qld) s 41(1); Inheritance (Family Provision) Act 1972 (SA) s 7(1); Testator’s Family Maintenance Act 1912 (Tas) s 3(1); Administration and Probate Act 1958 (Vic) s 91; Inheritance (Family and Dependants Provision) Act 1972 (WA) s 6(1).
69. See Family Provision Act 1982 (NSW) s 7; Family Provision Act 1970 (NT) s 8(1); Testator’s Family Maintenance Act 1912 (Tas) s 3(1).
70. See MP 28 at 68.
71. Family Provision Act 1982 (NSW) s 7. See also Family Provision Act 1969 (ACT) s 8(2).
72. See Family Provision Act 1970 (NT) s 8(1); Succession Act 1981 (Qld) s 41(1); Inheritance (Family Provision) Act 1972 (SA) s 7(1)(b); Testator’s Family Maintenance Act 1912 (Tas) s 3(1); Administration and Probate Act 1958 (Vic) s 91(3); Inheritance (Family and Dependants Provision) Act 1972 (WA) s 6(1).
73. See MP 28 at 50-51.
74. R 58 at para 5.45.
75. See Wentworth v Wentworth (1995) 37 NSWLR 703 at 724 (Powell JA).
76. See New South Wales Law Reform Commission, Testator’s Family Maintenance and Guardianship of Infants Act 1916 (Report 28, 1977) at para 2.17.1-2.17.7. See also Re Breen [1933] VLR 455; Re Porteus [1949] VLR 383.
77. For a discussion of this proposal, and the proposals that the National Committee rejected, see R 58 at para 5.40-5.57. For earlier proposals in this area, see Victoria, Chief Justice’s Law Reform Committee, Testator’s Family Maintenance-Variation of Orders (1973) at 8-11.
78. R 58 at para 5.49-5.50.
79. MP 28 at 19-20.
80. MP 28 at 65.
81. MP 28 at 23.
82. Family Provision Act 1982 (NSW) s 9(2)(a).
83. See MP 28 at 23.
84. MP 28 at 23.
85. MP 28 at 23.
86. See MP 28, drafting instructions at 12.
87. MP 28 at 66.
88. Family Provision Act 1982 (NSW) s 9(3)(b).
89. Administration and Probate Act 1958 (Vic) s 96(1); Succession Act 1981 (Qld) s 41(2)(c); Inheritance (Family Provision) Act 1972 (SA) s 7(3); Inheritance (Family and Dependants Provision) Act 1972 (WA) s 6(3); Testator’s Family Maintenance Act 1912 (Tas) s 8(1); Family Provision Act 1970 (NT) s 8(3); Family Provision Act 1969 (ACT) s 8(3)(a).
90. See MP 28 at 59-61 and 66.
91. See cl 11(2)(k).
92. MP 28 at 67.
93. MP 28 at 22-23.
94. MP 28 at 22.
95. See Re Bourke [1968] 2 NSWR 453; New South Wales Law Reform Commission, Testator’s Family Maintenance and Guardianship of Infants Act 1916 (Report 28, 1977) at para 2.9.11, 2.9.12.
96. NSWLRC, Report 28 at para 2.9.11.
97. This follows the effect of the decision in Luciano v Rosenblum [1985] 2 NSWLR 65 at 69. See R 58 at para 5.65-5.69.
98. See, eg, Cotton v Owen [1999] SASC 391. See also Young v Salkeld (1985) 4 NSWLR 375 at 377.
99. R 58 at para 5.63.
100. R 58 at para 3.90; see also para 3.56-3.89. This recommendation reverses an earlier recommendation of the National Committee: see MP 28 at 147.
101. See cl 30, below.
102. MP 28 at 114.
103. Although paragraph (a) has no precursor and a basis for paragraph (c) may also be found in Family Provision Act 1982 (NSW) s 11(1)(c) and s 13.
104. MP 28 at 109.
105. MP 28 at 113.
106. MP 28 at 135. Presumption of death will be dealt with by the National Committee in its report on the Administration of Estates of Deceased Persons.
107. See MP 28 at 151.
108. MP 28 at 151.
109. MP 28 at 131.
110. See cl 17, above.
111. MP 28 at 131.
112. See Family Provision Act 1969 (ACT) s 16; Family Provision Act 1970 (NT) s 16; Inheritance (Family Provision) Act 1972 (SA) s 10; Administration and Probate Act 1958 (Vic) s 97(4); Inheritance (Family and Dependants Provision) Act 1972 (WA) s 10.
113. MP 28 at 123.
