In Western Australia, the Family Provision Act 1972 (WA) allows certain individuals to challenge a will if they believe they have been inadequately provided for. This legislative framework aims to ensure that close family members and dependents are adequately supported after the death of a person, even if the will does not allocate resources to them.
While the act promotes fairness, it also presents a challenge to testamentary freedom—the principle that a person has the right to distribute their assets as they see fit upon death. This blog will explore who can make an application under the Family Provision Act in Western Australia and how such provisions impact a testator’s freedom to leave their estate according to their wishes.
Who Can Make an Application Under the Family Provision Act?
Not everyone can challenge a will under the Family Provision Act in Western Australia. The Act clearly defines eligible persons who may make an application for further provision from the deceased’s estate. These categories include:
1. Spouse or De Facto Partner
A surviving spouse or de facto partner of the deceased is eligible to make a claim. In this context, a de facto partner must demonstrate that they were living in a marriage-like relationship with the deceased for at least two years before their death.
2. Children
The Act includes the biological children of the deceased as well as adopted children. Additionally, children of any age, including adult children, may apply if they can show that the provisions in the will were inadequate for their proper maintenance, support, or education.
3. Grandchildren
Grandchildren can make an application under the Act, but this right is limited. Typically, a grandchild must demonstrate they were dependent on the deceased at the time of death or during their lifetime to be considered eligible.
4. Former Spouse or Former De Facto Partner
A former spouse or de facto partner may apply if they can demonstrate a moral duty was owed to them by the deceased, often tied to ongoing financial obligations or promises made during the relationship.
5. Stepchildren
While stepchildren are not automatically entitled, they may qualify if they can prove they were dependent on the deceased or were treated as a child of the family.
6. Other Eligible Persons
In some cases, other individuals who were financially dependent on the deceased may also make a claim. These individuals will need to show that they were living in a close personal relationship or receiving significant support from the deceased at the time of their death.
The Impact on Testamentary Freedom
The existence of the Family Provision Act introduces limitations on a person’s ability to distribute their estate freely, a principle known as testamentary freedom. In Western Australia, like many other jurisdictions, the notion of absolute freedom in will-making is subject to legislative constraints aimed at ensuring fairness and support for dependents.
1. Balancing Freedom and Responsibility
A testator is free to allocate their assets, but this freedom must be balanced with the responsibility to provide for those who have a legitimate claim on their estate. If a family member or dependent is left out of the will or inadequately provided for, the courts may step in to adjust the distribution. This adjustment could mean that even if a testator explicitly excludes certain people from their will, their wishes might not be upheld if an eligible applicant can prove that the deceased owed them a duty of care.
2. Moral Obligations
The courts often weigh the testator’s moral obligations when considering an application. Testamentary freedom may be restricted if the court deems that the testator failed to fulfill their duty to support close family members or dependents. In such cases, the court may adjust the distribution of assets, even if it contradicts the expressed wishes of the deceased.
3. Court’s Discretion
When a claim is made under the Family Provision Act, the courts in Western Australia have wide discretion to determine whether the current provisions in the will are inadequate. They consider factors such as the applicant’s financial needs, their relationship with the deceased, and the size of the estate. In doing so, the court’s decision may reshape the estate’s distribution, sometimes significantly altering the original testamentary plan.
Practical Implications for Will Makers
While the Family Provision Act is a necessary legal measure to prevent unjust outcomes, it can complicate the process of estate planning. Individuals who want to ensure their will is followed as closely as possible should consider the following strategies:
- Clear and Comprehensive Estate Planning: By carefully structuring a will and consulting legal experts, individuals can ensure their wishes are clear and legally sound.
- Explanation of Exclusions: If a testator intends to exclude eligible persons, they should provide written reasons for the exclusion. This could help the court understand the decision, though it does not guarantee that the exclusion will stand.
- Testamentary Trusts: Establishing a trust may offer a way to protect assets and provide for family members in a manner that could reduce the risk of successful challenges.
Conclusion
The Family Provision Act in Western Australia strikes a balance between the testamentary freedom of a will-maker and the need to ensure that close family members and dependents are adequately provided for. While this legislation may limit absolute freedom in distributing assets, it is an important measure to protect vulnerable individuals. Understanding who is eligible to make a claim and how the courts interpret these provisions is crucial for anyone involved in the estate planning process. To navigate these complexities, individuals should seek professional advice to ensure their wishes are respected while fulfilling any moral or legal obligations they may have to their dependents.
By comprehensively planning and understanding the implications of the Family Provision Act, will-makers can safeguard their testamentary intentions while mitigating the risk of successful challenges to their estate.
Who Decides What is Adequate
In Western Australia, under the Family Provision Act 1972 (WA), the determination of what constitutes “adequate” provision is made by the Supreme Court of Western Australia. When an application is brought under the Act, it is the court’s responsibility to decide whether the provision made for an eligible applicant in the deceased’s will (or under the rules of intestacy if no will exists) is adequate for their proper maintenance, support, education, or advancement in life.
How the Court Decides “Adequate” Provision
The court’s assessment of adequacy is subjective and depends on the specific circumstances of each case. There is no fixed formula, but several factors guide the court’s decision-making:
1. Applicant’s Financial Needs and Circumstances
The court considers the financial position of the applicant. This includes their income, assets, liabilities, and whether they have other sources of support. If the applicant is facing financial hardship or has ongoing needs (such as health care, housing, or educational needs), the court is more likely to find that inadequate provision has been made.
2. Size of the Estate
The court takes into account the total value of the deceased’s estate. If the estate is small, the ability to provide for everyone adequately may be limited. Conversely, a larger estate might lead to a higher expectation of support for eligible applicants.
3. Relationship with the Deceased
The nature and quality of the relationship between the applicant and the deceased is important. If the relationship was close, the court might expect the deceased to have provided for the applicant more generously. However, even estranged children or family members may receive provision if the court determines that there was still a moral duty owed to them.
4. Competing Claims
The court will look at the needs and entitlements of other beneficiaries and applicants. If multiple parties are seeking provision from the estate, the court will try to balance the competing claims fairly, often prioritizing immediate family members or those who were dependent on the deceased.
5. Moral Obligations
A key concept in family provision claims is the idea of moral obligation. The court considers whether the deceased owed the applicant a duty of care, even if it is not explicitly set out in law. For example, a testator might owe a duty to a dependent child, a spouse, or a partner to ensure they are not left in financial hardship after their death.
6. Health and Age of the Applicant
The applicant’s health and age are also important factors. Someone with significant health issues or who is elderly may need more financial support for medical care, while a younger applicant might need support for education or career advancement.
7. Deceased’s Wishes
While the court will take the deceased’s expressed wishes into account, such as those outlined in the will or in separate documents (e.g., letters of wishes), the court is not bound to follow them if they conflict with the statutory requirements for adequate provision.
Examples of Court Decisions on Adequate Provision
- Adequate vs. Generous Provision: The court is concerned with adequate, not necessarily generous, provision. Even if the testator’s estate is large, the court will not automatically reallocate wealth for the sake of generosity. The provision only needs to be sufficient to meet the proper needs of the applicant based on their personal circumstances.
- No Automatic Right to Equal Shares: Being a close family member (like a child) does not guarantee an equal share of the estate. The court will make a decision based on the applicant’s particular needs relative to others who might have a claim, rather than redistributing the estate equally.
- Estranged Relationships: In some cases, even if a person has been estranged from the deceased, the court might still find that the deceased had a duty to provide for them, especially in cases involving adult children with significant financial needs.
Court’s Discretion and Flexibility
The court has broad discretion under the Family Provision Act and is not limited to simply redistributing assets based on predefined rules. This flexibility allows the court to achieve fairness in light of all the circumstances. However, this also means that outcomes can be difficult to predict, and each case is evaluated on its unique merits.
In summary, the decision about what constitutes “adequate” provision is made by the court on a case-by-case basis, with careful consideration of the applicant’s financial needs, the size of the estate, the deceased’s moral obligations, and the claims of other beneficiaries.
Can Adult Children Make a Claim
Yes, adult children can make a claim for further provision under the Family Provision Act 1972 (WA) in Western Australia. The Act does not distinguish between minor and adult children in terms of eligibility, meaning adult children can apply for provision if they believe they have not been adequately provided for in the deceased’s will or under the rules of intestacy (if there is no will).
However, the court will assess each claim based on its individual merits, and adult children do not have an automatic right to receive provision simply by virtue of their status as children. The success of their claim will depend on several factors, including their financial situation and their relationship with the deceased.
Key Considerations for Adult Children’s Claims
When assessing a claim made by an adult child, the court considers the following factors:
1. Financial Need
One of the most important factors in determining whether an adult child should receive further provision from the estate is their financial situation. Adult children who are financially independent, employed, or have sufficient assets may find it harder to succeed in their claim compared to those who are in financial distress or reliant on the deceased for support.
For example, if an adult child is facing financial hardship due to unemployment, disability, or other circumstances, the court may consider their claim more favorably. Conversely, an adult child with no financial difficulties may struggle to justify a claim for further provision.
2. Health and Special Needs
If an adult child has significant health issues or special needs, this can strengthen their claim. The court will consider whether the adult child requires ongoing financial support due to their medical condition or inability to support themselves. In such cases, the court may find that the deceased had a moral obligation to make adequate provision for the adult child’s care and support.
3. Relationship with the Deceased
The quality of the relationship between the adult child and the deceased is also relevant. While estrangement or a strained relationship does not automatically disqualify an adult child from making a claim, the court will consider whether there was any ongoing support or moral obligation during the deceased’s lifetime. If the deceased and the adult child were close and there was a dependency, the court may be more inclined to grant provision.
4. Size of the Estate
The overall size and value of the deceased’s estate play a significant role in the court’s decision. If the estate is substantial, the court may be more willing to grant provision to an adult child. On the other hand, if the estate is small and the deceased had dependents who were more reliant (such as a spouse or minor children), the court may prioritize those dependents over an adult child who is financially independent.
5. Competing Claims
The court will weigh the needs of the adult child against the claims of other beneficiaries or dependents, such as a spouse, minor children, or other individuals who were financially dependent on the deceased. If there are competing claims, the court will attempt to balance these fairly, often prioritizing those who have a stronger financial or emotional dependency on the deceased.
6. Moral Duty
A key principle in family provision claims is the concept of a moral duty. The court examines whether the deceased had a moral obligation to provide for the adult child. This duty is not absolute, and the court may find that the deceased was not morally obliged to make further provision for an adult child if they were already financially independent or if the deceased had made adequate provision for them during their lifetime.
Examples of Adult Children Making Successful Claims
While adult children can make claims, their success depends heavily on the specific circumstances. Here are some typical scenarios where adult children may succeed:
- Financial Hardship: If an adult child is in financial distress, unemployed, or facing economic challenges, the court may rule that the deceased had a responsibility to provide support.
- Disability or Health Issues: An adult child with significant health problems, disabilities, or special needs may be considered a deserving applicant, especially if they were reliant on the deceased for financial support during their lifetime.
- Dependency on the Deceased: If the adult child was financially dependent on the deceased, either partially or entirely, the court might find that the deceased had a duty to make adequate provision.
Examples of Adult Children Being Unsuccessful
There are also cases where adult children’s claims are unsuccessful, especially in situations where:
- The adult child is financially independent, employed, or has a secure financial situation.
- The adult child and the deceased had a distant or estranged relationship, and there was no ongoing support or moral duty.
- The estate is relatively small, and the deceased had more pressing obligations to other dependents, such as a spouse or minor children.
Conclusion
While adult children are eligible to make a claim under the Family Provision Act in Western Australia, their success depends largely on their financial needs, their relationship with the deceased, and other competing claims on the estate. The court’s decision is highly discretionary, focusing on whether adequate provision has been made based on the individual circumstances of each case. Therefore, adult children need to provide clear evidence of financial dependency, special needs, or a moral duty owed by the deceased to justify a claim.
Should you wish to discuss these issues further then please don’t hesitate to contact Paul Coombs on 0433806146 or paul@coombslegal.com