Subject to the constraints placed upon the Court, which have been mentioned, all the States confer on the Court virtually unfettered discretion to order provision to be made for the applicant out of the estate of the deceased person. The wording of the statutes is as follows.

7.1 AUSTRALIAN CAPITAL TERRITORY AND NORTHERN TERRITORY

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

...the Court may, in its discretion and having regard to all the circumstances of the case, order that such provision as the Court thinks fit be made for the person [made] out of the estate of the deceased person.

7.2 NEW SOUTH WALES

Section 7 of the Family Provision Act 1982 (NSW) provides that:

if the Court is satisfied that the person is an eligible person, it may order that such provision be made out of the estate or notional estate, or both, of the deceased person as, in the opinion of the Court, ought, having regard to the circumstances at the time the order is made, to be made for the maintenance, education or advancement in life of the eligible person.

Section 41(1) of the Succession Act 1981 (Qld) provides that:

the Court may, in its discretion, ... order that such provision as the Court thinks fit shall be made out of the estate of the deceased person for such spouse, child or dependant.

7.4 SOUTH AUSTRALIA

Section 7(1) of the Inheritance (Family Provision) Act 1972 (SA) provides that:

the Court may in its discretion ... order that such provision as the Court thinks fit be made out of the estate of the deceased person for the maintenance, education or advancement of the person so entitled.

7.5 TASMANIA

Section 3(1) of the Testator’s Family Maintenance Act 1912 (Tas) provides that:

the Court or a judge may, in its or his discretion ... order that such provision as the Court or judge, having regard to all the circumstances of the case, thinks proper shall be made out of the estate of the deceased person for all or any of the persons by whom or on whose behalf such an application may be made...

7.6 VICTORIA

Section 91 of the Administration and Probate Act 1958 (Vic) provides that:

the Court may ... order that such provision as the Court thinks fit shall be made out of the estate of the deceased for such widow widower or children.

7.7 WESTERN AUSTRALIA

Section 6(1) of the Inheritance (Family and Dependants Provision) Act 1972 (WA) provides that:

the Court may, at its discretion ... order that such provision as the Court thinks fit is made out of the estate of the deceased for that purpose.

7.8 ISSUE FOR CONSIDERATION

It is hard to imagine a more potent conferring of discretion on the Court than in these quoted words which date from the early days of family provision legislation. The decision of the legislatures to confer a broad discretion on the Court, in a context where a very wide variety of possible fact situations will inevitably present over the years, reflects confidence in the judicial process as a means of reconciling competing claims in a context where moral as well as legal issues can be intertwined. It is unlikely that the words “having regard to all the circumstances of the case”, not found in all the statutes, significantly restrict the Court’s discretion: rather, they underline legislative policy that the Court must take care in exercising so broad a discretion. It will be desirable to render uniform or consistent the wording of these sections, all of which confer a broad discretion on the Court; to analyse the practical effect, if any, of words which may perhaps be seen as attempting to place some sort of indefinable brake upon the discretion; and to consider the desirability of retaining them.

FOOTNOTES

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