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Even where a person makes a valid will it’s possible that an eligible person brings a family provision application (FPA) to the court for it to change the disposition from the will in his or her favour.

Section 41(1) of Queensland’s Succession Act 1981 (Qld) sets out the grounds for an FPA:

If a person dies without making adequate provision from their estate for the proper maintenance and support of their spouse, child or dependant, the court may order that provision be made as it sees fit.

Only eligible persons can make an FPA. This means spouses, including de facto partners and parties to civil partnerships; children, including step and adopted children of the deceased; and ‘dependants’, including any person who was being wholly or substantially maintained or supported by the deceased, such as grandchildren and non-relatives.

The meaning of the phrase ‘adequate provision’ has been the subject of argument in many court cases dealing with FPAs. This article provides some more detail on how the term is interpreted in deciding an application for family provision.

What Factors Does the Court use in Assessing Adequate Provision?

In working out whether ‘adequate provision’ for ‘proper maintenance and support’ 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 applicant’s financial situation and responsibilities – their actual need of provision from the estate is a highly 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 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 which should disentitle them from provision, such as alcoholism or drug dependence?
  • What is the nature of the competing claims on the will? Why did the will-maker regard other dispositions as preferable or superior to the applicant’s?

All of these factors are considered on the basis of whether the provisions from the will are sufficient, rather than generous.

As the High Court said in Vigolo v Bostin (2005) 221 CLR 191, the adequacy of provision is not to be decided “in a vacuum” nor decided simply on the question of whether the applicant has enough “upon which to survive or live comfortably”. The determination of what is adequate, therefore, is relative to the applicant’s needs but also takes into account their own capacity to meet those needs.

But while the financial need of the applicant is a central factor in assessing an FPA, the fact an applicant such as an adult child is independently wealthy or is not experiencing financial hardship does not necessarily mean the deceased should not have made adequate provision for them. Such provision was described, for example, as a “moral obligation” in the Victorian Supreme Court case of Berkelmans v Bulach [2009] VSC 472.

Adequate provision, for example, has been found to include applications for the provision of capital for future business opportunities (McCosker v McCosker[1957] HCA 82) or for the expected needs of an applicant approaching retirement age (Smilek v Public Trustee [2008] NSWCA 190).

The importance of legal advice

As can be seen, many factors are taken into account in determining whether provision from an estate is adequate, and courts have a broad discretion to investigate all the circumstances of the case.

The guidance of expert wills and estates legal professionals is vital, whether you wish to make an FPA because you expected to be provided for – or better provided for – from a family member’s will, or whether you are executor of a will responding to the lodgment of an FPA.

Furthermore, if you are making a will, or would like to update an existing will, contact Will & Estate Lawyers today about reducing the chances of your estate becoming the subject of an FPA is highly advisable.