In situations where a deceased’s spouse, child or dependant does not believe that adequate provision has been made for them under a will, section 41 of the Succession Act grants the court the power to make orders for provision out of the estate, for the proper maintenance of that spouse, child or dependant.
It is not possible for parties to receive further provision out of an estate or changing the provisions of a Will, until an order has been made by the court. Consequently, even if a dispute over a Will is settled or agreed by parties through mediation or negotiation, an order still needs to be made by the court before the agreement has any effect. Generally, the power given to the court by the Succession Act allows these provision orders to be made at the courts’ discretion (i.e. whatever the court sees fit).
In a recent 2011 case, Begulic v The Public Trustee, the husband of the deceased sought a family provision order under s 41 of the Succession Act, after the entire estate of the deceased was granted to her nephew under her Will. The parties reached agreement outside of court proceedings, however still required the court to make an order to give effect to the agreement. The focus of this case was on the weight the court should give to agreements reached between the parties, when determining the orders that should be made. The court noted that the process of obtaining a family provision order involved two stages:
It was determined that generally courts should make orders in accordance with the terms of the settlement reached between the parties, except in cases where the plaintiff appears to have no need of provision.
The applicant in this case gave evidence that he had been married to the deceased for 43 years, without children and they had separated in 1990, but resumed cohabitation 13 years later and until her death. He had worked his whole life and had only ceased employment in order to provide care for his wife after she had a stroke. He had applied his superannuation to the mortgage on a property held by him and his wife as tenants-in-common. He also suffered from stress, had very few assets and was 70 years of age.
The court concluded that it was clear on the facts that adequate provision had not been made for the applicant. The proposed settlement between the parties was seen as acknowledgement by the respondent of this lack of provision. The court was also satisfied that the agreed proposal between the parties was appropriate.