1. What is the Family Provisions Act?
The Family Provisions Act 1972 (WA) provides that, where a person, either under a will or through the laws of intestacy, has been left without adequate provision for their proper maintenance, support, education and advancement in life from the estate of a deceased, that person may apply to the Court for an order that adequate provision be made. The test is not whether the distribution to a person is unfair as this would derogate from the deceased’s freedom of testamentary disposition.
2. Time to Apply:
You must make an application within 6 months of the Administrator/Executor being appointed, otherwise you will need to satisfy the Court that the justice of the case justifies commencing out of time. Every effort should be made to apply before the 6 months ends to avoid the risk of your application not being heard.
3. Who Can Apply?
The Act provides that any or all of the following people may make an application:
(a) A spouse (including de facto partner);
(b) A former spouse receiving maintenance from the deceased at the time of death;
(c) The deceased’s children (which may include stepchildren and adopted children)
(d) Grandchildren
(e) A parent
If a person eligible to apply is underage or under a disability, a guardian may apply on their behalf.
4. Who is a Child Entitled to Claim?
Section 4 of the Act states that a child is to include illegitimate and adopted children, but for an “illegitimate child”, paternity must be admitted or proved against the father during his lifetime. The basis being that a father cannot have failed to provide for a child if they were unaware they had a child.
If a person who died after 16 January 2013 has a step-child, that step child may make a claim where:
- The step child was maintained or entitled to be maintained by the deceased immediately before death; or
- The deceased step-parent received or was entitled to receive property from the estate of the step-child’s natural parent.
An adopted child may make a claim against their adopted parent but not against their natural parent.
5. What does “proper maintenance, education and advancement in life” mean?
This means provision for the supply of the necessaries of life, although it also extends to provision over and above a mere sufficiency of means upon which to live. It implies a continuity of pre-existing state of affairs. The phrase advancement in life extends this such that there may be provision for the applicant which enables them to improve their prospects in life.
6. What the Court Considers:
The applicant must establish what their needs are before the Court can determine whether there was adequate provision. Many factors are considered and the circumstances of each case determines the importance. The Courts refer to there being a financial “need” of the applicant and a person having a “moral claim”, which looks at relationship between the deceased and applicant. Sometimes a person has a strong moral claim based on their relationship with the deceased but there is no financial need and another potential applicant has no moral claim but a desperate financial need. The Court will have to examine the circumstances of each case to determine is adequate provision has been made.
The Relationship
A relevant factor will be the nature and totality of the relationship between the deceased and the applicant and other beneficiaries. Factors which are relevant to considering the relationship with the deceased include:
(a) Sacrifices or services the applicant gives to or for the benefit of the deceased;
(b) Contributions to building up the deceased’s estate;
(c) Conduct between the applicant and deceased;
(d) Financial assistance provided by the deceased to the applicant;
(e) The age of the applicant, as generally, the obligation to make provision diminishes as a child gets older, until they approach retirement at which time it becomes greater; and
(f) The size of the estate, in that the larger the estate is, the greater the moral duty to make provision.
The Position of the Applicant and other Beneficiaries:
The Court determines the applicant’s position at the time of death.
The Court will have regard to the applicant and other beneficiaries. The Court will consider the applicant’s financial position and the size and nature of the deceased’s estate. The Court will consider:
(a) the person’s ability to satisfy their own financial requirements from their own resources, including guarding against unforeseen contingencies;
(b) a persons prospects at being able to increase their income or become better off financially in future;
(c) in the circumstances of a spouse, whether they are secure in their own home, though if the house is the only significant asset then the spouse may not retain the property;
(d) the applicant’s standard of living during the deceased’s lifetime and lifestyle choices (ie if the person has chosen not to work to earn an income they should not receive a greater distribution from the estate); and
(e) whether there are any special needs of the applicant.
7. Considerations Specific to Children
A material consideration of children is their age and the size of the estate. The older the child is, the easier it is to ascertain their future needs but the younger the child is, the more difficult it is to ascertain their future needs and more likely a court is, in the case of a large estate, to make provision to meet contingencies which it may not consider for a smaller estate.
There is also no obligation to treat children equally, each child will have their own needs. For example, the Court may take into consideration where the child and parent are estranged, particularly where the child deliberately excluded the parent from their life.
The family circumstances of the child will be relevant, including:
- Whether they are employed, in a relationship and sharing financial resources;
- Whether the child owns their own home or may need a deposit to buy one in future. Generally, unless the estate is very large, there is no expectation a child will be left with a mortgage-free house, which contrasts with the position of widows where it is expected, where possible, for the spouse to be secure in their own home or other accommodation;
- Whether the child has completed or is completing further education; and
- Whether the child has their own children to support.
Where an adult child has a special need, ie an autistic child, will more easily be able to establish that they have a need but it is not necessary for an adult child to establish a special need,
Where a deceased was twice married, having children from both relationships, it will be an important consideration if the first spouse was able to provide for the children without assistance and, in the case of a small estate, may mean no provision is appropriate, leaving everything to the second spouse.