Wills, Contesting Wills

Family Provision Claims – Courts Will Amend Wills Only to the Extent Necessary and No Further


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Family Provision Claims – Courts Will Amend Wills Only to the Extent Necessary and No Further

Legislation across all Australian jurisdictions allows for eligible persons to make a claim for further provision out of the will of a related person when adequate provision has not been made. In Queensland the relevant legislation is Part 4 of the Succession Act 1981 and “eligible persons” includes spouses, children and dependants.

The process of the court for deciding a family provision claim involves two steps. Firstly the court determines whether adequate provision has been made for the applicant by the deceased in their will. If the decision is that adequate provision has not been made, the court then determines what the appropriate provision should be and amends the amount awarded to the applicant out of the estate accordingly.

The purpose of the legislation allowing for such claims is to ensure that each beneficiary under a will (or any relative who is entitled to be a beneficiary under the will,  according to the legislation) is provided for by the testator to the extent necessary to ensure their “proper maintenance and support”. The appropriate provision is always considered in respect to the role the testator played in the life of their respective spouse, child or dependant and the provisions made during the life of the testator.

In an older case of McCosker v McCosker, the deceased had five sons and two daughters. There were no negative relationships between the deceased and any of his children. In his will, the testator made provision for two of his sons and made no provision for any of his other children as by his reasons in his will, he had already provided for them adequately in his lifetime. There was no challenge by four of the children who were not included as beneficiaries, as two of the sons had been established as successful graziers thanks to financial assistance from their father and the two daughters were married with husbands who could support them (note that this case was heard in the 50’s and the same gender stereotyping would be less likely to preclude a provision application today).

During his lifetime, the deceased had provided the applicant with employment working on his property for many years and had also provided loans to assist the applicant to purchase property and animals for breeding and production. This was put forward as the justification by the deceased for having not further provided for him under the will.

At first instance the court determined that adequate provision had not been made for the applicant son as his property was not yet in a state to be producing sufficient income and it was known to his father at the time of drafting his will that further funding would be necessary. It was also found that it was known to the deceased that the applicant’s wife was unwell and her car and medical expenses had greatly impacted the applicant’s ability to maintain and develop the property to a state where it could generate a decent income. Accordingly the applicant was awarded a significant sum out of the estate, which impacted the sum then received by the other two brothers.

On appeal by the two sons for whom provision had been made, the court determined that the original decision to amend the will was correct, as adequate provision had not been made for the applicant, however the amount awarded was not correct. On examination of the sum awarded, the court noted that even if provision was made to cover the whole of the applicant’s debts, as well as to cover payment for new equipment and birds, it would still be a smaller sum than what was awarded in the first instance. Accordingly the appeal was allowed and the court reduced the amount awarded to more accurately reflect what would actually be required to fulfil the deceased’s “moral duty” to provide for his son which was a reduction to almost half of what was originally awarded.

While this case is an older case, it exemplifies an attitude still held by courts generally in regard to family provision claims; that there is a reluctance to alter peoples’ wills and that it will only be done in circumstances where it is clear that adequate provision has not been made for the applicant. Even on that basis, this case makes clear that such alterations will be limited to the appropriate amount required to fulfil the requirement to provide for eligible persons and therefore those pursuing family provision claims should consider carefully the amount they believe is genuinely deserved.

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