Recent Family Provision Applications
The 2 judgements referred to below are for estates of very different sizes but highlight clearly that an applicant must demonstrate financial need. This is consistent with the High Court judgement in Singer v Berghouse [1994] HCA 40 where the court ruled that family provision applications are a 2-stage process with the first stage requiring an assessment of whether the provision for maintenance under the Will was appropriate having regard to “the applicant’s financial position, ….”.
We are finding that some family provision applicants are bringing applications without due consideration of the requirement to demonstrate financial need. The fact that a Will is “unfair” or provides more for one beneficiary than another is not a basis for a family provision application.
AB v FGH [2022] WASC 244 (29 July 2022). The testator died in January 2019, aged 87, leaving a will dated 17 December 2009 and an estate valued at $6,465,175. Her son was the principal beneficiary. Two of her daughters resolved their family provision applications leaving a net residuary estate of $3,088,423 as at September 2021. Under the testator’s will, the testator’s third and eldest daughter was left $25,000 and jewellery.
The applicant had been estranged from the testator since the death of her father in 2001 as explained by the testator in a Statutory Declaration. ‘Conflict, argument and estrangement’ were constant features within the family.
The applicant, divorced in 2007, was in critical financial straits and had been in Family Court proceedings for the last sixteen years which had currently reached the High Court.
Solomon J made the following findings and observations:
1. At the time of the testator’s death, the applicant was in dire financial circumstances. She had a judgment against her for $2.5million. She was unemployed with no independent means.
2. The cause of the estrangement from the testator was not the fault of the applicant. The reasons for the breakdown of the family relationships were too complex to apportion blame to a daughter. The breakdown was not such as to preclude Family Provision which was reasonably foreseeable by the testator at the time of her death.
3. Adequate provision had not been made for the applicant.
The court ordered that provision of $850,000 from the estate be held in a discretionary trust where the applicant was the primary beneficiary and her issue belonged to the class of general beneficiaries. The trust would continue after the applicant’s death for the benefit of her issue. The trustees should include a professional person such as a lawyer or an accountant.
Re Monument; Monument v Monument [2022] VSC 205 (29 April 2022).
The plaintiff, the testator’s daughter (Robyn), the eldest of the testator’s four adult daughters, sought a Family Provision order.
The testator’s 2012 will provided that the family home in Stawell, valued at $270,000 in November 2021, be given to her second daughter, Jannene, and the residuary estate to the four daughters in equal shares. There was no residuary estate for distribution. The testator died on 24 September 2018.
The testator had promised her late husband that Jannene would receive the family home. Jannene had cared for the testator’s husband and the testator in their illnesses. The evidence showed that Robyn, who left home at 17, had suffered a ‘traumatic’ childhood; she was ridiculed,
tormented and neglected by the testator who suffered from alcoholism.
Jannene contended that since the death of the testator’s husband in 2011, the testator and Robyn were estranged.
Matthews AsJ made the following observations and findings:
1. Her Honour did not accept any permanent estrangement between the testator and Robyn, as alleged by Jannene. It was intermittent. Robyn continued to attend family occasions, for example, Christmas, and during the testator’s later years she cared for the testator, who stayed with her from time to time, and took her to medical appointments.
2. The testator had a moral obligation to provide for Robyn in her will.
3. Robyn, aged 60, was in financial need with ‘an earning capacity essentially non-existent’ and a bank loan of $22,527.
4. The approximate amount likely for distribution from the estate was $213,000.
The court ordered that provision be made for Robyn by payment of 50 per cent of the net proceeds of the estate.
Where to go for estate planning and will dispute assistance
We recommend you seek legal advice when writing up your estate planning documents in order to ensure that you have a valid will and that your family members are adequately provided for. There are always complex factors to consider, and these are not always able to be worked through alone.
Bradley & Bray are leading wills, estate and succession lawyers on the Sunshine Coast — let us help you protect your loved ones in the way they deserve or help you through the process of administering a deceased estate, including disputing a will and the probate process.
This article is general in nature and does not constitute legal advice. If you require legal advice in relation to your personal circumstances, you must formally engage our firm, or another firm to provide legal advice in relation to your matter. Bradley & Bray lawyers takes no responsibility for any use of the information provided in this article.
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