In all States and Territories persons eligible to make application for a family provision order must satisfy the Court of the following matters in relation to the disposition of the deceased’s estate.
3.1 AUSTRALIAN CAPITAL TERRITORY AND NORTHERN TERRITORY
Section 8(1) of the Family Provision Act in each Territory1 requires the Court to be satisfied that:
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 [and] advancement in life of the person by whom, or on whose behalf the application is made...
Section 8(2) requires the Court to take into account any benefits conferred by the exercise by will of a general or special power of appointment.
3.2 NEW SOUTH WALES
Section 9(2) of the Family Provision Act 1982 (NSW) requires the Court to be satisfied that:
(a) the provision (if any) made in favour of the eligible person by the deceased person either during his lifetime or out of his estate...
is, at the time the Court is determining whether or not to make such an order, inadequate for the proper maintenance, education and advancement in life of the eligible person.
Section 9(2) also requires the Court to take account of any provision made out of the “notional” estate of the deceased. The concept of notional estate is particular to New South Wales and is considered in Chapter 5 of this Paper.
3.3 QUEENSLAND
Section 41(1) of the Succession Act 1981 (Qld) requires the Court to be satisfied that:
in terms of the will or as a result of the intestacy adequate provision is not made from the estate for the proper maintenance and support of the deceased person’s spouse, child or dependant...
3.4 SOUTH AUSTRALIA
Section 7(1)(b) of the Inheritance (Family Provision) Act 1972 (SA) requires the Court to be satisfied that:
by reason of his testamentary dispositions or the operation of the laws of intestacy or both, a person entitled to claim the benefit of this Act is left without adequate provision for his proper maintenance, education or advancement in life...
3.5 TASMANIA
Section 3(1) of the Testator’s Family Maintenance Act 1912 (Tas) requires the Court to be satisfied that:
in terms of his will or as a result of his intestacy any person by whom or on whose behalf application for provision out of his estate may be made under this Act is left without adequate provision for his proper maintenance and support thereafter...
3.6 VICTORIA
Section 91 of the Administration and Probate Act 1958 (Vic) requires the Court to be satisfied that:
the distribution of his estate effected by his will (if any), or by the operation of the provisions of Division 6 of Part I [Distribution of Intestate’s Residuary Estate] of this Act or both by his will and the operation of the said provisions is such as not to make adequate provision for the proper maintenance and support of the deceased’s widow widower or children...
3.7 WESTERN AUSTRALIA
Section 6(1) of the Inheritance (Family and Dependants Provision) Act 1972 (WA) requires the Court to be satisfied that:
the disposition of the deceased’s estate effected by his will, or the law relating to intestacy, or the combination of his will and that law, is not such as to make adequate provision from his estate for the proper maintenance, support, education or advancement in life of any of the persons mentioned in section 7 of this Act as being persons by whom or on whose behalf application may be made under this Act...
Section 6(2) adds:
The Court in considering for the purposes of subsection (1) of this section whether the disposition of the deceased’s estate effected by the law relating to intestacy, or by the combination of the deceased’s will and that law, makes adequate provision for the purposes of this Act shall not be bound to assume that the law relating to intestacy makes adequate provision in all cases.
In Bosch v Perpetual Trustee Company Limited,2 a case often referred to, the Privy Council said:3
The amount to be provided is not to be measured solely by the need of maintenance. It would be so if the Court were concerned merely with adequacy. But the Court has to consider what is proper maintenance, and therefore, the property left by the testator has to be taken into consideration.... Where, therefore, the testator’s estate is a large one the Court will be justified in such a case in making provision to meet contingencies that might have to be disregarded where the estate is small.4
So Hardingham, Neave and Ford say:5
A condition precedent to the exercise of the court’s discretion is that the will or the operation of the intestacy legislation is such as not to make adequate provision for the proper maintenance and support of the applicant. A court is not justified in making an order simply on the basis that the will achieves an unfair distribution if this condition precedent is not satisfied.
Except in New South Wales the question of whether adequate provision has been made is determined at the date of the death of the testator; but the Court may take into account circumstances existing at the time of the making of the order for the purposes of determining the amount of the order;6 and the Court may take into account matters which the testator either knew of or could reasonably have foreseen.7 In New South Wales the question of adequacy is dealt with at the time the Court is considering the application.8
3.8 ISSUES FOR CONSIDERATION
(1) The words “adequate” and “proper provision” recur in all States’ and Territories’ legislation. They are fundamental to the concept of family provision. They do not, therefore, raise issues of uniformity, except for the fact that there are some differences in the drafting of the provisions in which these phrases occur. However, some States and Territories refer only to support and proper maintenance of the applicant, while others refer to proper maintenance, education and advancement in life of the applicant. There is a significant difference; whereas support, maintenance and education are words traditionally associated with the expenditure of income, advancement has been associated with the expenditure of capital, such as setting a person up in business or upon marriage.9 Consistency requires the inclusion or exclusion of these words.
(2) Whether adequate provision was made for proper provision should be ascertained by reference to the circumstances of the applicant and the deceased at the date of death or at the date of the hearing is another question which requires consideration and reconciliation. To a certain extent this difference may have been obscured in practice by the device of allowing for consideration what a testator might reasonably have foreseen; and by the rule that what may be allowed to the applicant is to be determined at the date of the application; although both these practices may have themselves been generated by the difficulty of the question.
Example
A testator leaves to a surviving spouse a portfolio of share of sufficient value at the date of the death to make adequate provision for his or her proper maintenance; but within a short period of time (say a year), before the shares have been transferred to the spouse in the normal course of administration, their value has been substantially reduced by a stock market crash. Should that be ignored, or might it be brought within a “reasonably foreseeable” concept? If the latter, why insist on testing adequacy at the date of death?
FOOTNOTES
1. Family Provision Act 1969 (ACT); Family Provision Act 1970 (NT).
2. [1938] AC 463.
3. Id at 478.
4. This requirement is considered in detail in Hardingham I J, Neave M A & Ford H A J Wills and Intestacy in Australia and New Zealand (Law Book Co 2nd ed 1989) (hereafter cited as “Hardingham, Neave & Ford”) at 490-497 and in De Groot and Nickel at para [204.4].
5. Hardingham, Neave & Ford at 494.
6. Blore v Lang (1960) 104 CLR 124 per Dixon CJ at 130.
7. Eg White v Barron (1980) 144 CLR 431 per Mason J at 444.
8. Family Provision Act 1982 (NSW) s9(2).
9. See Ford H A J & Lee W A Principles of the Law of Trusts (Law Book Co 2nd ed 1990) at para 1261 for examples of advancement.
