This chapter is concerned with the differences which exist, in States’ and Territories’ legislation, with respect to who is entitled to make a family provision application.
It is stressed that entitlement to make a family provision application does not of itself mean that provision will be ordered. Those entitled to apply must further satisfy the Court that, to use the wording of section 8 of the Family Provision Act 1969 (ACT):
adequate provision is not available, under the terms of the will of a deceased person or under the law applicable on the death of the person as an intestate or under the will and that law, from the estate of the deceased person for the proper maintenance, education or advancement in life of the person by whom, or on whose behalf the application is made ...
The wording of this adequacy threshold varies throughout the States and Territories. The differences of wording are considered in Chapter 3.
The persons entitled to make application for a family provision order are defined in the following legislation:
| State or Territory | Legislation |
| Australian Capital Territory: | Family Provision Act 1969 section 7;1 |
| New South Wales: | Family Provision Act 1982 section 6(1); |
| Northern Territory: | Family Provision Act 1970 section 7; |
| Queensland: | Succession Act 1981 section 40; |
| Tasmania: | Testator’s Family Maintenance Act 1912 section 3A; |
| Victoria: | Administration and Probate Act 1958 section 91; |
| Western Australia: | Inheritance (Family and Dependants Provision) Act 1972 section 7; |
| South Australia: | Inheritance (Family Provision) Act 1972 section 6. |
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2.1 SURVIVING SPOUSES
The surviving spouse of a deceased person is eligible to apply in all States and Territories. The propriety of a spouse’s eligibility has never been questioned. At the time the legislation was first introduced a husband was under a legal duty to maintain his wife: it could hardly be argued that that duty should cease on his death.
2.2 CHILDREN
The children of a deceased person are eligible to apply in all States and Territories.
2.3 FORMER SPOUSE
A former, that is divorced, spouse, may apply in all States and Territories, although in Victoria and Tasmania, it appears that only a former wife, and not a former husband, may apply.2
In Queensland3 and Tasmania4 the former spouse’s eligibility is limited by a requirement that the spouse has not remarried, and in the Australian Capital Territory,5 Queensland, the Northern Territory,6 Tasmania, Victoria7 and Western Australia8 by a requirement that the former spouse was receiving or entitled to receive maintenance at the date of the deceased’s death. The language of this requirement differs from State to State and there is accompanying case-law.9
In New South Wales and South Australia no restriction is placed on the eligibility of a former spouse to make application. However, in New South Wales the Court has to be satisfied of a variety of matters under section 9 of the Family Provision Act 1982 (NSW), reinforcing underlying criteria of adequacy and need.10
Issues for consideration
(1) It is necessary to consider whether the remarriage of a former spouse should disqualify that spouse from making a family provision application.
(2) It is necessary to consider whether a former spouse should be eligible to make application only if he or she is receiving or entitled to receive maintenance from the estate of the deceased.
(3) It is necessary to consider whether the law should apply equally to a former wife and to a former husband.
2.4 STEP-CHILDREN
A stepchild of the deceased is made specifically eligible to apply for family provision in the Australian Capital Territory, the Northern Territory, Queensland, South Australia and Tasmania.11 In the Australian Capital Territory, the Northern Territory and South Australia the step-child must be a person who was maintained by the deceased person immediately before his or her death.12
Definition of step-child
The Full Court of the Queensland Supreme Court has held that the relationship of step-child and step-parent ceases to subsist after the termination of the marriage which created it, by divorce or death. In Re Burt13 McPherson J said:
the applicant must be the child by a former marriage of one who is the husband or wife of that person at the date of death of the latter.
The decision overruled earlier cases, viz. Re Trackson (Deceased)14 , Re Nielsen, Deceased 15 and Re Burt at first instance.16 This decision, which was reiterated by the Full Court in 1989 in Re Marstella,17 greatly restricts the ability of step-children to make application as the following example shows.
Example
A and B marry and have a child Janice.
A and B divorce. A marries C and B marries D.
C and D are both step-parents of Janice.
If the step-parents predecease the parents, Janice will be able to make a family provision application against four estates, that is those of her parents A and B and her step-parents C and D.
But if the parents predecease the step-parents Janice will have to make application on the death of each of her parents: she cannot wait and apply on the subsequent death of the former step-parent, even although the former step-parent may have inherited her parent’s estate: she will have to compete with the step-parent in the application.
If Janice could defer making an application until the death of the step-parent, entirely different considerations would govern the application, including how much the parent had left the step-parent and the other obligations of the step-parent at the time of the step-parent’s death. She would not have to compete with the step-parent.
If C and D have children of previous marriages their rights to apply will be the other way around.
Practitioners have frequently criticised the limited meaning placed on the term step-child by the Queensland Full Court which is binding in Queensland, but not necessarily elsewhere.
Thus De Groot and Nickel said:18
Macrossan J (as he then was) has highlighted the arbitrary result produced by the current definition in that, whatever the length of the relevant marriage, the step-child might have a claim if his or her natural parent dies a short time after but not if such parent dies a short time before the day on which the deceased, the spouse of such parent, dies. Clearly, considerable injustice can result from this interpretation of ‘stepchild’, and the intervention of the legislature is warranted.
The Queensland Law Reform Commission has received correspondence from a leading firm of Brisbane solicitors criticising the narrowness of the Full Court’s definition.
It is arguable that the Queensland decision may be incorrect, on the ground that it significantly impairs (even if it does not nullify) rather than enhances what is, after all, a jurisdiction traditionally characterised by the breadth of the discretion which it confers on the judiciary.
In any case it would be undesirable to leave matters where they are because of the uncertainty of the law. There is always the possibility of an appeal from Queensland to the High Court of Australia; and consideration of the same question in other States could lead to divergent interpretations because of the criticism to which the Queensland cases have been subject.
It may also be mentioned that in Queensland a person under the age of eighteen years, who was being wholly or substantially maintained or supported (otherwise than for full and valuable consideration) by the deceased person at the time of the deceased person’s death, may make an application for provision.19 This could include a former step-child.
2.5 GRANDCHILDREN
Specific provision is made for grandchildren of a deceased to apply in the Australian Capital Territory, New South Wales, the Northern Territory, South Australia and Western Australia.20 In Queensland a grandchild may apply as a dependant. Except in South Australia, differing restrictions are placed upon applicants. In the Australian Capital Territory21 and the Northern Territory22 the grandchild cannot make application unless -
(a) the parent of the grandchild who was a child of the deceased person died before the deceased person died; or
(b) one or both of the parents of the grandchild was [was or were] alive at the date of the death of the deceased person and the grandchild was not maintained by that parent or by either of those parents immediately before the death of the deceased person.23
In New South Wales24 the grandchild is required to have been, at a particular time or at any time, a member of the household of which the deceased person was a member.
In Queensland a dependant, who may include a grandchild, must be under the age of 18 years and a person who:25
was being wholly or substantially maintained or supported (otherwise than for full valuable consideration) by that deceased person at the time of the person’s death.
In Western Australia there is a combination of the other restrictions. Eligibility to apply is conferred on a grandchild:26
who at the time of death of the deceased was being wholly or partly maintained by the deceased or whose parent the child of the deceased had predeceased the deceased living at the date of the death of the deceased, or then en ventre sa mere.
(1) The requirement of the dependency of the grandchild upon the grandparent is part of the fundamental perception of family provision law, and indeed of succession law more generally, that blood relationship per se is not a justification for the conferring of rights of succession. Nevertheless it is arguable that that perception can be expressed in the general part of the legislation, and not repeated, with variations, in relation to different classes of potential applicants.
(2) Specific reference to grandchildren, like specific reference to step-children, implies the exclusion of other young persons who may have just as good a potential claim and who may be just as dependent on the deceased. For instance, an uncle and aunt may become testamentary guardians of a child or children whose parents have died prematurely. One issue for consideration is whether there needs to be reference to specific young person groups.
(3) In any case, if grandchildren are to be given specific eligibility, any restrictions should be consistent.
2.6 OTHER YOUNG PERSONS
In New South Wales a young person may apply as a dependant or member of the household of the deceased person.27 In Queensland a person under the age of 18 years may apply as a dependant if he or she:28
was being wholly or substantially maintained or supported (otherwise than for full valuable consideration) by that deceased person at the time of the person’s death.
2.7 DE FACTO SPOUSES
A de facto spouse may make a family provision application in the New South Wales, the Northern Territory, Queensland, South Australia and Western Australia. Eligibility is restricted by strict factual criteria.
In the Northern Territory a de facto spouse must show that he or she was “maintained by the deceased person immediately before his or her death”.29
In New South Wales the applicant must have been living with the deceased person at the time of that person’s death, “as his wife” or “as her husband” on a bona fide domestic basis.30
In Queensland a de facto spouse must show that he or she:31
Since a de facto spouse can only apply as a dependant there must also be shown that he or she:32
was being wholly or substantially maintained or supported (otherwise than for full valuable consideration) by that deceased person at the time of the person’s death.
In South Australia “spouse” is defined, in relation to a deceased person, to include:33
a person adjudged under the Family Relationships Act, 1975, to have been a putative spouse of the deceased either on the date of his death, or at some earlier date.
There is no requirement that the de facto spouse was being maintained by the deceased.
In Western Australia there are different provisions again. Eligible to make application, under section 7(1)(f) is:34
a de facto widow or widower of the deceased who at the time of the death of the deceased was being wholly or partly maintained by the deceased, who was ordinarily a member of the household of the deceased, and for whom the deceased, in the opinion of the Court, had some special moral responsibility to make provision.
(1) A consistent definition of de facto spouse, or some other appellation, must be sought. This might, in any case, become a matter of Federal Government intervention as a matter of family law.
(2) The extent to which a de facto spouse must show dependency, or that the deceased was maintaining or had been maintaining the applicant, needs to be consistent. It is arguable that if a suitable definition of de facto spouse can be agreed there is no need to differentiate between the lawful spouse and the de facto spouse; and that the general adequacy threshold provision should suffice.
2.8 PARENTS
All States, except Victoria, and the Territories allow parents to apply for family provision. Once again their eligibility is restricted by requirements of dependency.
In the Australian Capital Territory and the Northern Territory the parent must show that he or she was being maintained by the deceased immediately before the death of the deceased, and that the deceased was not survived by a spouse or children.35
In New South Wales, the definition of eligible person includes:36
a person who was, at any particular time, wholly or partly dependent upon the deceased person.
This class of eligible persons can include adults not related by blood to the deceased. However the Court has to be satisfied of a variety of matters under section 9 of the Act reinforcing underlying criteria of adequacy and need. The extensively written provisions of section 9 largely relate to the matters which the Court should take into account in exercising its discretion in making an order.
In Queensland a parent may make an application as a dependant and must show that he or she:37
was being wholly or substantially maintained or supported (otherwise than for full valuable consideration) by that deceased person at the time of the person’s death.
In South Australia a parent may apply if he or she:38
satisfies the court that he cared for, or contributed to the maintenance of, the deceased person, during his lifetime.
It has been held that this is not restricted to a period immediately before the death of the deceased.39 Most parents would be able to show that they come within this test.
In Tasmania the parents of a deceased person may apply if the deceased person dies without leaving a widow40 or any children.41
In Western Australia a parent, including an adoptive parent, may apply without qualification.42
(1) There is the general issue of whether a class of parents could be merged into a more general class of adults eligible under a general criterion or criteria, as is the case in New South Wales.
(2) Then there is the question of what, if any, restrictions should be placed upon parents who apply, such as restrictions about being maintained, or having maintained, or the absence of other potential applicants, particularly a spouse or children of the deceased.
2.9 OTHER ADULTS
In New South Wales, as has already been shown, a person is eligible to apply:43
No other Australian legislature has gone so far.
Issues for consideration
The New South Wales provision represents an inroad into the concept that applicants for family provision must be classified by groups; although the provision must be read in the light of the lengthy requirements of section 9 concerning the way in which the Court should approach applications by such a person.
It may be possible, if simplification as well as consistency can be achieved, to reduce the number of classified groups of eligible applicants, including, for instance, step-children, grandchildren, parents and de facto spouses, if the focus of the legislation were redirected to the sorts of matters which the Court should take into account in considering an application, rather than with possibly arid and arbitrary questions of formal eligibility to apply.
FOOTNOTES
1. Pursuant to s5(1) of the Self-Government (Citation of Laws) Act 1989 (ACT), the Family Provision Ordinance 1969 (ACT) is to be cited as the Family Provision Act 1969.
2. Administration and Probate Act 1958 (Vic) s91; Testator’s Family Maintenance Act 1912 (Tas) s3A(d).
3. Succession Act 1981 (Qld) s40 (definition of spouse).
4. Testator’s Family Maintenance Act 1912 (Tas) s3A(d).
5. Family Provision Act 1969 (ACT) s7(2).
6. Family Provision Act 1970 (NT) s7(2).
7. Administration and Probate Act 1958 (Vic) s91.
8. Inheritance (Family and Dependants Provision) Act 1972 (WA) s7(1)(b).
9. See Re HJ Mayo (deceased) [1968] 2 NSWR 709; Re Lack [1981] Qd R 112; Dobelle v Van Damme [1982] VR 104; Re Blood [1983] 1 Qd R 104; and Sarich v Erceg [1984] WAR 11.
10. See section 4.2 of this Paper.
11. Family Provision Act 1969 (ACT) s7(2); Family Provision Act 1970 (NT) s7(2); Succession Act 1981 (Qld) s40 (definition of “child”); Inheritance (Family Provision) Act 1972 (SA) s6(g); Testator’s Family Maintenance Act 1912 (Tas) s2(1) (definition of “child”).
12. Family Provision Act 1969 (ACT) s7(2); Family Provision Act 1970 (NT) s7(2); Inheritance (Family Provision) Act 1972 (SA) s6(g).
13. [1988] 1 Qd R 23 at 29.
14. [1967] Qd R 124.
15. [1968] Qd R 221.
16. [1985] 2 Qd R 335.
17. [1989] 1 Qd R 638; sub nom Glover v Executors, Estate of Marstella (deceased) (1988) 12 Fam LR 787.
18. De Groot and Nickel at 92.
19. Succession Act 1981 (Qld) s40 (definition (c) of “eligible person”).
20. Family Provision Act 1969 (ACT) s7(1)(e); Family Provision Act 1982 (NSW) s6(1) (definition (d) of “eligible person”); Family Provision Act 1970 (NT) s7(1)(e); Inheritance (Family Provision) Act 1972 (SA) s6(h); Inheritance (Family and Dependants Provision) Act 1972 (WA) s7(1)(d).
21. Family Provision Act 1969 (ACT) s7(3).
22. Family Provision Act 1970 (NT) s7(3).
23. Where the legislation of the Australian Capital Territory is virtually identical to that of the Northern Territory the provisions have been set out together. The Australian Capital Territory legislation is to be read exclusively of the words appearing in square brackets; for the Northern Territory legislation the words appearing in square brackets are to be read in substitution for the shaded words.
24. Family Provision Act 1982 (NSW) s6(1) (definition (d) of “eligible person”).
25. Succession Act 1981 (Qld) s40 (definition (c) of “dependant”).
26. Inheritance (Family and Dependants Provision) Act 1972 (WA) s7(1)(d).
27. Family Provision Act 1982 (NSW) s6(1) (definition (d) of “eligible person”).
28. Succession Act 1981 (Qld) s40 (definition (c) of “dependant”).
29. Family Provision Act 1970 (NT) s7(2).
30. Family Provision Act 1982 (NSW) s6 (definitions (a)(ii) and (iii) of “eligible person”).
31. Succession Act 1981 (Qld) s40 (definition (d) of “dependant”).
32. Succession Act 1981 (Qld) s40.
33. Inheritance (Family Provision) Act 1972 (SA) s4.
34. Inheritance (Family and Dependants Provision) Act 1972 (WA) s7(1)(f).
35. Family Provision Act 1969 (ACT) s7(4); Family Provision Act 1970 (NT) s7(4).
36. Family Provision Act 1982 (NSW) s6(1) (definition (d)(i) of “eligible person”).
37. Succession Act 1981 (Qld) s40 (definition (a) of “dependant”).
38. Inheritance (Family Provision) Act 1972 (SA) s6(i).
39. In the Estate of Terry, Deceased (1980) 25 SASR 500.
40. Testator’s Family Maintenance Act 1912 (Tas) s2 defines “widow” to include “widower”.
41. Id s3A(c).
42. Inheritance (Family and Dependants Provision) Act 1972 (WA) s7(1)(e).
43. Family Provision Act 1982 (NSW) s6(1) (definition (d) of “eligible person”).
