In addition to the constraints placed upon the Court to make a family provision order mentioned in the preceding chapters, there are additional constraints imposed either as part of the definition of some classes of eligible applicants or in terms of statutory instructions to the Court respecting what the Court should take into account in exercising its jurisdiction to make an order. These constraints vary considerably from jurisdiction to jurisdiction.

4.1 AUSTRALIAN CAPITAL TERRITORY AND NORTHERN TERRITORY

Section 8(3) of the Family Provision Act in each Territory¹ provides:

The Court may refuse to make an order in favour of a person whose character is such, or whose conduct is or has been such, as, in the opinion of the Court, disentitles him to the benefit of an order.

This significant provision is found in other jurisdictions.²

4.2 NEW SOUTH WALES

Section 9(1) of the Family Provision Act 1982 (NSW) provides that where an application is made by persons defined in paragraph (c) or (d) of the definition of “eligible person” in section 6(1), that is:

(c) a former wife or husband of the deceased person, or

(d) a person:

(i) who was, at any particular time, wholly or partly dependent upon the deceased person; and

(ii) who is a grandchild of the deceased person or was, at that particular time or at any other time, a member of a household of which the deceased person was a member;

shall first 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.

Hardingham, Neave and Ford describe the meaning of this provision as “somewhat obscure”.³

By section 9(3)(b) the Court “may take into consideration”, among other things, when making an order:

the character and conduct of the eligible person before and after the death of the deceased person.

4.3 QUEENSLAND

Section 40 of the Succession Act 1981 (Qld) defines “dependant” as follows:

“dependant” means, in relation to a deceased person, any person who 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 being -


(a) a parent of that deceased person;

(b) the parent of a surviving child under the age of 18 years of that deceased person;

(c) a person under the age of 18 years; or

(d) a person who -


(i) has lived in a connubial relationship with that deceased person for a continuous period of 5 years at least including a period terminating on the death of that deceased person; or

(ii) within the period of 6 years terminating on the death of that deceased person, has lived in a connubial relationship with that deceased person for periods aggregating 5 years at least including a period terminating on the death of that deceased person.

In addition to the constraints imposed by the requirement that the dependant was being maintained by the deceased, a further constraint is imposed on the Court by the wording of the proviso in section 41(1A) which reads:

However, the Court shall not make an order in respect of a dependant unless it is satisfied, having regard to the extent to which the dependant was being maintained or supported by the deceased person before the deceased person’s death, the need of the dependant for the continuance of that maintenance or support and the circumstances of the case, that it is proper that some provision should be made for the dependant.

This proviso is consistent with underlying doctrine that persons, particularly those not within the contemplation of the first versions of the legislation, that is, spouses and children, must show specific cause.

Section 41(2)(c) provides that the Court may:

refuse to make an order in favour of any person whose character or conduct is such as, in the opinion of the Court, disentitles him or her to the benefit of an order, or whose circumstances are such as make such refusal reasonable.

4.4 SOUTH AUSTRALIA

Section 7(3) of the Inheritance (Family Provision) Act 1972 (SA) provides:

The Court may refuse to make an order in favour of any person on the ground that his character or conduct is such as, in the opinion of the Court, to disentitle him to the benefit of this Act, or for any other reason that the Court thinks sufficient.

A similar constraint is to be found in the other jurisdictions.

4.5 VICTORIA

Victoria, with its very limited jurisdiction, repeats the constraint of other jurisdictions by providing, in section 96(1) of the Administration and Probate Act 1958 (Vic) as follows:

The Court may refuse any such application if the character or conduct of the applicant is such as in the opinion of the Court to disentitle him or her to the benefit of any provision under this Part.

4.6 WESTERN AUSTRALIA

Section 6(3) of the Inheritance (Family and Dependants Provision) Act 1972 (WA) provides:

The Court ... may refuse to make an order in favour of any person on the ground that his character or conduct is such as in the opinion of the Court to disentitle him to the benefit of an order, or on any other ground which the Court thinks sufficient.

Then section 7(1)(f) places a constraint upon the Court where it is considering the application of a “de facto widow or widower”. The applicant must show that he or she was being wholly or partly maintained by the deceased and 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.

4.7 WHEN SHOULD THE APPLICANT’S MORAL OR OTHER FITNESS FOR RELIEF BE CONSIDERED?

There has been some disagreement as to the stage at which issues of the applicant’s moral or other unfitness for relief should be considered. Should it be considered when the Court decides whether “adequate provision” has been made for the applicant’s “proper maintenance”, or should it be made afterwards, when considering whether an order should be made at all or whether the amount of the order should be affected?

Thus in Hughes v National Trustees, Executors and Agency Company of Australasia Limited⁴ Murphy J, referring to the adequate provision constraint in section 91 of the Victorian legislation, said:⁵

Difficulty arises from the unwarranted introduction of the notion of moral claim into s.91 from which it follows that the appellant must establish his moral claim; in effect, his character and conduct must qualify him for the benefit of provision out of the estate...

In my opinion, this confuses the simple operation of the sections. Section 91 specifies the conditions of qualification; s.96 specifies the conditions of disentitlement of disqualification. To bring himself within s.91, the appellant does not have to establish any moral claim or qualification other than those specified in the section.

Murphy J adhered to this view in Goodman v Windeyer.⁶ Gibbs J, however, in the same case took a rather broader view,⁷ taking account of the many considerations which must be borne in mind when deciding whether an applicant has a prima facie case, including the applicant’s conduct in relation to the testator. So in Hughes’ case Gibbs J had said:⁸

The question whether conduct is sufficient to disentitle an applicant to relief must depend not only on the nature of the conduct itself, but, also, to some extent, on the strength of his need or claim to provision from the estate of the testatrix. The stronger the applicant’s case for relief, the more reprehensible must have been his conduct to disentitle him to the benefit of any provision.

4.8 ISSUES FOR CONSIDERATION

(1) With respect to the question of the effect of the conduct of the applicant it seems that it is not clear in jurisdictions other than New South Wales⁹ whether the Court can take into account conduct after as well as before the death of the deceased. It is clear that this needs to be considered for the purposes of rendering the legislation consistent. For example, should an applicant whose conduct before death could not be criticised be penalised if he or she can be shown to have stolen from the estate of the deceased?

Moreover the legislation does not make it clear, although it appears to be the law, that, although the word “disentitle” is used in all the legislation, conduct may result in a reduction of the amount of the award and not necessarily in a disentitlement. This could be spelled out.

(2) Where, as in New South Wales in relation to a former spouse, grandchildren and other dependants being members of the deceased’s household, and in Queensland in relation to defined “dependants”, the Court is constrained to give additional scrutiny to the application, it is desirable that the terminology used be reconsidered, having regard to principles of “plain English”, and an appropriate degree of abstraction of the language.

(3) There seem to be differing views as to when the applicant’s character and conduct should be considered by the Court. Should character and conduct only be considered when the Court has decided that an award should be made, for the purposes of reducing or nullifying that award? Or should character and conduct be considered, as well, in the initial stage of the application, when what is being considered is whether adequate provision has been made for the proper maintenance and support of the applicant? Case-law is tending to indicate that consideration of character and conduct should be made only at the later stage and not at the initial stage. Should this be enshrined in legislation?

4.9 EVIDENCE OF CHARACTER AND CONDUCT

Some States have made no statutory provision respecting what evidence is admissible of an applicant’s character and conduct. In case-law, the admissibility as evidence of statements made by the testator has been impugned.

A practice of admitting testators’ statements concerning the conduct of applicants for provision under the legislation as evidence of that conduct was mentioned by Gibbs J in Hughes v National Trustees, Executors and Agency Company of Australasia Limited.¹⁰ Having observed that “usage justifies its reception” Gibbs J said:¹¹

However, in general it is the duty of a judge to reach his decision on evidence that is legally admissible, and to put evidence only to those uses which the law allows. When a statement is admitted, not as evidence of its truth but simply as original evidence, the mere fact of its admission cannot enable it to be given an additional probative value which the law denies it.

This is the law in Queensland, South Australia and Victoria where the legislation makes no reference to this issue. But in other jurisdictions there has been some legislative response.

Australian Capital Territory and Northern Territory

Section 22 of the Family Provision Act in each Territory¹² provides:

Relevance of testator’s reasons [ACT]

The Court may have regard to the testator’s reasons [NT]

(1) The Court shall, in determining an application for an order under section 8 or 9a [section 8], have regard to the testator’s reasons, so far as they are ascertainable, for making the dispositions made by his will [,] or for not making provision or further provision, as the case may be, for a person who is entitled to make an application under this Act.

(2) The Court may receive in evidence a statement signed by the testator and purporting to bear the date on which it was signed and to set out reasons for making or not making provision or further provision by the will of the testator for a person as evidence of those reasons.

(3) Where a statement of a kind referred to in subsection [sub-section] (2) is received in evidence, the Court shall, in determining what weight, if any, ought to be attached to the statement, have regard to all the circumstances from which any inference may reasonably be drawn concerning the accuracy of the matters referred to in the statement.

New South Wales

In New South Wales there is a lengthy provision in section 32 of the Family Provision Act 1982 (NSW) concerning the admissibility of evidence. What follows quotes (using inverted commas) some portions of this section, and summarises other portions of this section.

(1) Definition of “document” and “statement”.

“(2) In any proceedings under this Act, evidence of a statement made by a deceased person shall, subject to this section, be admissible as evidence of any fact stated therein of which direct oral evidence by the deceased person would, if he were able to give that evidence, be admissible.”

“(3) Subject to subsection (4) and unless the Court otherwise orders, where a statement was made by a deceased person during his lifetime otherwise than in a document, no evidence other than direct testimony (including oral evidence, evidence by affidavit and evidence taken before a commissioner or other person authorised to receive evidence for the purpose of the proceedings) by a person who heard or otherwise perceived the statement being made shall be admissible for the purpose of proving it.”

(4) Statement made by the deceased in legal proceedings may be “approved in any manner authorised by the Court”.

(5) A statement made by the deceased in a document may be proved by the production of the document (or copy by leave).

(6) Court may require additional evidence where document evidence is tendered.

“(7) For the purpose of determining questions of admissibility of a statement under this section, the Court may draw any reasonable inference from the circumstances in which the statement was made or from any other circumstances including, in the case of a statement contained in a document, the form or content of the document.”

(8) Circumstances which the Court may consider in estimating the weight of statements.

(9) Counter evidence admissible.

(10) Inconsistent evidence admissible.

“(11) No evidence of a matter is admissible under subsection (9) or (10) in relation to a statement of a deceased person where, if the deceased person had been called as a witness and had denied the matter in cross-examination, evidence would not be admissible if adduced by the cross-examining party.”

“(12) This section applies notwithstanding:

(a) the rules against hearsay; and

(b) the rules against secondary evidence of the contents of a document

and notwithstanding that a statement is in such a form that it would not be admissible if given as oral testimony, but does not make admissible a statement of a deceased person which is otherwise inadmissible.”


“(13) This section does not apply to statement to which Part 2C of the Evidence Act 1898 applies.”

Tasmania

Section 8A of the Testator’s Family Maintenance Act 1912 (Tas) provides:

(1) On the hearing of an application under subsection (1) of section three, the Court or judge may have regard to the deceased person’s reasons, so far as they are ascertainable, for making the dispositions made by his will, or for not making any provision or further provision, as the case may be, for any person, and the Court or judge may accept such evidence of those reasons as it or he considers sufficient, whether that evidence would otherwise be admissible in a court of law or not.

Western Australia

Subsections 4(2) and (3) of the Inheritance (Family and Dependants Provision) Act 1972 (WA) provide:

(2) In any proceedings under this Act a matter of fact shall be taken to be proved if it is established to the reasonable satisfaction of the Court.

(3) Where a provision of this Act requires the Court to be satisfied of the existence of any ground or fact or as to any other matter, it is sufficient if the Court is reasonably satisfied of the existence of that ground or fact or as to that other matter.

Subsection (4) is concerned with evidence establishing the relationship between a father and an illegitimate child.

Issues for consideration

It is clear that the lengthy New South Wales provisions are the most considered of the provisions which exist concerning the admissibility of statements made by a testator which may have effect on the entitlement of an applicant for family provision. They are also specific. Of other legislation, particularly that of Western Australia, it may be considered that the language is so generalised as to be difficult to be clear as to the extent to which it impacts on traditional rules of evidence.

FOOTNOTES

1. Family Provision Act 1969 (ACT); Family Provision Act 1970 (NT).

2. Its effect is thoroughly examined in Hardingham, Neave & Ford at 514-518 and in De Groot and Nickel at para [207].

3. Hardingham, Neave & Ford at 488; but there is a detailed consideration of the way in which it operates in De Groot and Nickel at paras [204.4] and [307].

4. (1979) 143 CLR 134.

5. Id at 159-160.

6. (1980) 144 CLR 490 at 504-505.

7. Id at 496-499.

8. Hughes v National Trustees, Executors and Agency Company of Australasia Limited (1979) 143 CLR 134 at 156.

9. See 27 above.

10. (1979) 143 CLR 134 at 150.

11. Id at 153.

12. Family Provision Act 1969 (ACT); Family Provision Act 1970 (NT).