While a person’s last will and testament are considered to be an accurate expression of their final wishes, once they have passed it often becomes clear that the beneficiaries of the deceased do not necessarily agree with the fairness of those wishes.
Adult children of the deceased, in particular, may believe that the testator (the will-maker) has failed to make ‘adequate provision’ for their ‘proper maintenance and support’, and that they are entitled to a greater share of the estate.
This belief can be common in family situations where an adult child perhaps had a disagreement with the parent during the latter’s lifetime which may have lead to the parent amending their will. In other circumstances, one sibling may be favoured in the will over the others because they acted as the parent’s personal carer in their later years, for example.
In these situations, an adult child may make a family provision application (FPA) to the court under section 41 of Queensland’s Succession Act 1981 in order to have it review the share they received in the will. How the court determines this application is addressed in this article.
How are FPAs by adult children assessed?
The fact an adult child who makes an FPA for greater provision from their parent’s will is employed and living independently does not preclude them from making an application. Nor does the fact they may be suffering financial hardship necessarily mean the court will find the deceased should have made adequate provision for the child. Whether the deceased made adequate provision for the proper maintenance and support of the applicant is an objective question assessed at the date of the death of the deceased.
The meaning of the phrases ‘adequate provision’ and ‘proper maintenance and support’ have been the subject of debate in many court cases involving FPAs.
In Vigolo v Bostin (2005) 221 CLR 191 – a claim for adequate provision made by an adult son who had worked for 20 years on his father’s farm – the High Court said that adequacy of provision was not to be decided simply on whether the applicant has enough “upon which to survive or live comfortably”. The determination of what is adequate is assessed against the applicant’s needs but also takes into account their own capacity to meet those needs.
In addition to need, Vigolo endorsed the concept of moral duty or obligation on behalf of the testator in making adequate provision for his or her children. This may mean the court is more willing to disturb a provision in the will where the testator left money to a charity with which he or she had little or no connection, for example, rather than to one of their children.
In working out whether adequate provision for proper maintenance and support of an adult child has been made from the estate, all the circumstances of the case are taken into account. These include:
- The size of the deceased’s estate – is it large enough to make the provision applied for? The larger the estate, the more likely the contingencies of the applicant such as future misfortune, taxation or superannuation may be provided for.
- The applicant’s financial situation and responsibilities – the actual need of provision from the estate for the adult child is a relevant question.
- The relationship of the applicant to the deceased – were they close before the deceased passed or had they been estranged for a period?
- Whether the applicant materially contributed to the estate of the deceased during the latter’s lifetime.
- Whether the applicant has a specific financial need for the provision, such as fees for education, unemployment or illness that prevents them from working.
- Is there any conduct by the applicant that should disentitle them from a provision, such as alcoholism or drug dependence, or where the parent and child had disregarded and/or disowned each other during the testator’s lifetime?
- What is the nature of the competing claims on the will? Why did the will-maker regard dispositions to other beneficiaries is preferable or superior to the applicant?
All of these factors are considered on the basis of whether the provisions from the will are sufficient, rather than generous.
Some examples from the courts
Examples of claims made for adequate provision in FPAs include for the provision of capital for future business opportunities (McCosker v McCosker  HCA 82) or for the expected needs of an application approaching retirement age (Smilek v Public Trustee  NSWCA 190).
In Taylor v Taylor  WASC 71, the will of the deceased allocated an estate valued at $560,272 between his five adult children but gave one son approximately $430,000 of the total with the remainder to be divided among the other four siblings. The favoured son had acted as the deceased’s carer in the four years preceding his death, including showering, dressing, toileting, cooking, cleaning and many other tasks for his father, allowing the man to remain in his own home.
Another son brought an FPA claiming he was not adequately provided for. Despite being in full-time employment, this son had a number of significant health issues and required ongoing medical treatment. He was also married with four dependent children.
In determining adequate provision, the court considered the factors detailed above, including the applicant’s financial position given his ongoing medical needs and need to support dependants. Any moral claim to the estate was also considered in determining whether adequate provision had been made for the applicant.
The court dismissed the FPA, finding the deceased had every moral justification to distribute his estate in unequal portions between his children. Leaving the majority of his estate to the son who had been the testator’s primary carer was an understandable act of gratitude.
Taylor v Taylor reaffirmed how the success of an FPA by an adult child will be highly dependent on the particular facts of the family situation, the position of the party making the application and any competing claims of other family members, among the factors outlined above.
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