Family Provision Claims By Adult Children
Approach To Claims Generally Pursuant To The Succession Act 1981 (Qld)
The general structure of the Succession Act 1981 (Qld) follows a form similar in all Australian States and pioneered in New Zealand. Because the legislation is remedial in character, it is to be construed expansively.
The key provision is s.41, which is enlivened when the court is satisfied that adequate provision has not been for the proper maintenance and support of the applicant.
Section 41(1) provides:
“Estate of deceased person liable for maintenance
If any person (the deceased person) dies whether testate or intestate and in terms of the will or as a result of the intestacy adequate provision is not made from the estate for the proper maintenance and support of the deceased person’s spouse, child or dependant, the court may, in its discretion, on application by or on behalf of the said spouse, child or dependant, order that such provision as the court thinks fit shall be made out of the estate of the deceased person for such spouse, child or dependant”
The basic principle underlying this legislation is the often cited statement of Salmond J in Allen v Manchester  GLR 613 of what a just and wise father would have thought it his moral duty to do had he been fully aware of all the circumstances. This principle was adopted by the High Court in McCosker v McCosker (1957) 97 CLR 566 at p.576, but in Singer v Berghouse (1994) 181 CLR 201 (Singer’s Case”) the majority of the High Court doubted that the statement about the just and wise father “provides useful assistance in elucidating the statutory provisions”.
More recently, in Vigolo v Bostin  221 CLR 191 (“Vigolo’s Case”), Gleeson CJ, at p.204, endorsed the usefulness of the need to establish a moral claim. Gleeson CJ in Vigolo’s Case, at p. 200, expressed the view that it is now self-evident that a court would be more ready to disturb a testamentary provision in favour of a beneficiary, such as a charity with whom a testator had no connection, than a provision in favour of dependent relatives on the basis of the concept of moral obligation.
The test appears to be what a “wise and just” testator would have done in all the circumstances of the case based on a “moral duty”. Often “need” and “moral claim” will co-exist. The question of ‘need’ is relative. Destitution is not necessary. The size of the estate is often relevant and contingencies in the life of the applicant can be taken into account.
Justices Callinan and Heydon in Vigolo’s Case, at p.228, however said that they would use those expressions (which are within the contemplation of the Act), and to apply the concepts underlying them, but that a moral claim (whether under a will or in an intestacy) cannot be founded upon considerations not contemplated by the Act nor a claim based simply upon the fact of the testator showing a preference for one beneficiary over another. Vigolo’s Case continues to be applied and was recently applied by the Supreme Court of Queensland in Stewart v Stewart  QSC 238.
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 – Singer’s Case. Proper maintenance and support is relative to the applicant’s age, gender, condition and mode of life and situation generally.
In determining the threshold question about adequacy of any provision, consideration is also given of any moral claims the applicant may have, by having regard to matters such as:
- The totality of the relationship between the deceased and the applicant;
- Size and nature of the estate;
- Number of competing claims and the merits of those claims;
- Standard of living of the deceased during the lifetime of the deceased; and
- Any assistance rendered by the deceased to the applicant or vice versa.
In Vigolo’s Case, Callinan and Heydon JJ also said, at p. 228, that “Maintenance” may imply a continuity of a pre-existing state of affairs, or provision over and above a mere sufficiency of means upon which to live. “Support” similarly may imply provision beyond bare need”.
Adequacy is considered according to the applicant’s needs and the applicant’s capacity and resources for meeting them. Singer’s Case established that determining family provision applications involves a two-stage process:
- Determining whether the applicant has been left without adequate provision (the jurisdictional question); and
- If yes, determining what provision ought to be made.
Gummow and Hayne JJ and Gleeson CJ in Vigolo’s Case noted the correctness of the test in Singer’s Case and said that, henceforth, the judgment should provide an appropriate guide to the construction of the family provision legislation.
As to the issue of adequacy of provision, the most important factors to consider are the applicant’s “need” and “moral claim” in the context of their circumstances. Both factors are to be considered together, with neither having priority over the other – see Re Elwell  Qd R 141.
Those factors are considered as at the date of death of the deceased and whether the deceased knew of them or not and what could reasonably have been foreseen by the deceased if the deceased knew those facts - see Hughes v National Trustees Executors and Agency Company of Australasia Ltd  143 CLR 134
In Singer’s Case, at p.209, the High Court also considered that, in determining the jurisdictional question, regard should also be had to the applicant’s financial position, the size and nature of the estate, the relationship between the deceased and the applicant and any other persons who may have a claim on the estate.
“Need” is relative and does not mean the applicant must be in necessitous circumstances. The larger the estate, the more likely will contingencies be provided for, such as future misfortune, taxation or superannuation. As to the onus of proof, the Applicant bears the onus on the balance of probabilities.
The Duty To Uphold The Will
The personal representative of the deceased has a primary duty to uphold the terms of the will or distribution on intestacy. The representative is sometimes referred to as “the defender of the will” and that person will be a party to the litigation.
In Scales Case Dixon CJ, at p.19, said “All authorities agree that it was never meant that the Court should re-write the will of a testator. Nor was it ever intended that the freedom of testamentary disposition should be so encroached upon that a testator’s decision expressed in his will have only a prima facie effect, the real dispositive power being vested in the Court”.
In exercising the duty, the personal representative can either compromise or oppose the application bearing in mind the commerciality of such a course, especially in the case of modest estates.
Where all the beneficiaries are represented, the duty of the personal representative is to provide the court with relevant information. This includes information which may assist the applicant, including:
- Particular circumstances relating to gifts;
- Conduct justifying the deceased’s exclusion or limitation of benefits;
- List of the estate assets and liabilities; and
- Financial position and needs of the beneficiaries.
Where not all beneficiaries are represented, the personal representative has a duty to provide affidavits on their behalf and this usually contains evidence which is contrary to the applicant’s case. This general duty is akin to a duty to the court to ensure that the interests of the beneficiaries under the will is properly put before the court.
Section 41(2)(c) of the Act expressly provides that the court may refuse to make an order in favour of a person whose character or conduct disentitles that person to the benefit of an order.
In the case of children, this usually consists of conduct that evidences rejection or ill-treatment. Scales Case is an example of such conduct, although the reasoning of the court was not based on disentitling conduct as such, but revolved upon the issue of moral duty. There, the adult son failed in an application when his father made no provision for his adult son in his will in circumstances where:
- The son was 50 years of age and in good financial circumstances;
- There was no communication between the father and his son since the boy was 4 years of age;
- The son had no recollection of his father;
- The son made no attempt to contact his father; and
- Both the father and the son disregarded each other and the father later disowned him.
The current view is that estrangement per se is not conduct disentitling, especially if the estrangement was caused by the deceased – see Palmer v Dolman  NSWCA 361 at  and the onus of proving disentitling conduct rests with the party opposing the application. At one time, where a deceased had given reasons for excluding or limiting the child from a benefit under the will, the onus of disproving those reasons rested with the applicant.
It should be noted that s.44(2) of the Act provides that an applicant cannot bring an application if, being of full legal capacity, the applicant has notified the personal representative in writing that they consent to the distribution of the estate or that they do not intend to make an application.
As a general proposition, adult sons are not in a strong position to succeed. In Scales Case, Dixon CJ approved, at p.20, what Fullagar J said in In re Sinnott  VLR 279 at 280, that an adult son is prima facie able to “maintain and support” himself and some special need or some special claim must generally be shown to justify intervention by the Court. This view has been reiterated by the High Court in Vigolo’s Case by Gleeson CJ, at p.205.
Factors which have been regarded as a special need or claim include:
- inexperience or financial vulnerability;
- poor health;
- mental infirmity or disability – for eg Stewart v Stewart  QSC 238;
- inability to support dependants;
- educational needs;
- insecure future employment and possibility of sickness;
- contributions to building up the estate; and
- close and loving relationship with deceased.
The contemporary view is that adult daughters (whether married or unmarried), should not be treated differently from adult sons, in principle, if they are in a comparable situation as an adult son in terms of health and/or economic capacity and opportunities – see Re Anderson (1975) 11 SASR 276 at 285.
Earlier cases are of questionable relevance since community standards have changed from the earlier situation when generally the disparity between income of men and women was much greater and women tended to remain at home and had fewer employment opportunities. There was then also a more pronounced distinction between married and unmarried daughters.
Similarly, whether a daughter is divorced or married should not, in principle, make any difference to her prospects of a successful claim. While the earlier cases tended to suggest that married daughters who were adequately supported by their husbands were less likely to succeed, the view today is that such applications should be considered more liberally, particularly in the case of larger estates. Relevant factors to consider in such applications include:
- Her and her husband’s income;
- The stability of their employment;
- Whether the children are in a private or public school;
- The probability of economic misfortune; and
- The probability of ill health.
The law of succession in this area of the law has grown to accommodate the changes in our community and our expectations of what a wise and just deceased should have done to provide for his surviving adult children. This has had a real impact on the notion of testamentary freedom and it will continue to develop as society changes.