Published 10 Sep 2014
Author: Garbis Kolokossian
It is not uncommon for the relationship between an adult child and a parent to breakdown resulting in that parent removing that child from his or her Last Will and Testament. Whilst it is important to understand that every person has the right to draft his or her Will in the way they see fit, it is also important to understand that when preparing the last Will and Testament, it is important to consider all persons that the deceased ought to have provided for following his or her death.
It is for this reason that the legislation has been drafted in a way which allows adult children to make claims on a deceased parent’s estate when adequate provision was not made. When considering ones entitlement to make a claim, in particular the entitlement of an adult child, it is important to refer to Section 41(1) of the Succession Act 1981 which provides as follows:
If any person (the deceased person) dies whether testate or intestate and in terms of the will …. adequate provision is not made from the estate for the proper maintenance and support of the deceased persons … child … the court may, in its discretion, on application by or on behalf of the said ... child … order that such provision as the court thinks fit shall be made out of the estate of the deceased person for such … child…’
The determination of an application under S.41(1) involves a two-stage process. Singer v Berghouse (1994) 181 CLR 201 (Annexure 1) describes the first stage of the two stage process. The Court held (at page 209.10):
'The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate for what, in all the circumstances, was the proper level of maintenance etc appropriate for the applicant having regard, amongst other things, to the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have a legitimate claim upon his or her bounty'.
The second stage involves determination of what provision ought to be made if the first stage is satisfied. The two stages involve many of the same considerations.
The expressions 'adequate provision' and 'proper maintenance and support' are the subject of a great number of authorities.
’15…Adequate provision for the proper maintenance and support of the applicant means more than maintenance at a basic level. It means maintenance and support at a level or degree appropriate to the applicant in all the circumstances of the case. The court has regard to, amongst other things, "the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty.” (Singer v Berghouse)’
The court also held however that:
'The court does not exercise jurisdiction under the Act to build up out of the estate of the testator the capital assets of a person who has built up enough assets for their proper maintenance.'
McCosker v McCosker (1957) 97 CLR 566 (Annexure 3) considered the phrase ‘proper maintenance and support’ as used in S. 41(1) and held (at page 571.9):
‘As the Privy Council said in Bosch v Perpetual Trustees the word 'proper' in this collocation of words is of considerable importance. It means 'proper' in all the circumstances of the case, so that the question whether a widow or child of a testator has been left without adequate provision for his or her proper maintenance, education or advancement in life must be considered in the light of all the competing claims upon the bounty of the testator and the relative urgency…..If the court considers that there has been a breach by a testator of his duty as a wise and just husband or father to make adequate provision for the proper maintenance, education or advancement of life of the applicant, having regard to all the circumstances, the court has jurisdiction to remedy the breach and for that purpose to modify the testamentary dispositions to the necessary extent.'
In Pizzino v Pizzino  QSC 35 (Annexure 4) the Court considered the meaning of 'adequate provision' in respect of an applicant in an estate valued at about $3.8 - 4.0m. The court held:
’65. Because of the size of the deceased's estate, further provision can easily be made for the applicant out of the one half share of the estate that the deceased had earmarked for both the applicant and his sons…
69. The applicant's needs for secure accommodation and a modest capital sum that remains after meeting his existing liabilities, in order to provide a buffer for him as he meets future uncertainties in relation to employment, health and ageing, require provision for his adequate maintenance and support that is greater than the 1/8 share that is presently given to him under the will….’
In Collins v McGain  NSWCA 190 (Annexure 5), cited with approval in Darveniza v Darveniza & Ors  QSC 37 (Annexure 6) the Court held:
‘42…there can be no question that at least as part of the first stage of the process, the question of whether the eligible person has a relevant need of maintenance etc is a proper enquiry. This is so as the proper level of maintenance etc appropriate for an eligible person in all the circumstances clearly calls for a consideration of his or her needs. However, the question of needs must not be too narrowly focused. It must, in my view, take into account, depending upon the particular circumstances of the case, present and future needs including the need to guard against unforeseen contingencies.
47. As I have observed, the issue of need is not confined to whether or not an eligible person has, at the date of hearing, a then need for financial assistance with respect to his maintenance etc. It is a broader concept. This is so because the question of needs must be addressed in the context of the statutory requirement of what is 'proper maintenance etc' of the eligible person. It is because of that context that, in the present case, the 'proper maintenance etc' of the appellant required consideration of a need to guard against the contingency to which I have referred.
In Lloyd-Williams v Mayfield (2005) 63 NSWLR 1 (Annexure 7), alsocited in Darveniza, it was held:
‘29… Decisions in the past show that judges formerly took a very limited view of the provision appropriate to be made, for example, for able-bodied adult sons and a limited view of the appropriate provision for married daughters. These decisions belong to past times and do not express the values of the present age. See Hunter v Hunter.
32. It was open to White J and altogether appropriate to look well beyond needs when interpreting and applying community standards to decide what provision the court ought to order. The concept of advancement in life can take consideration well beyond needs.’
The prominent issue that affects whether or not any order for provision will be made is a simple one. The size of the estate and the funds available to the court will play a large role in determining whether or not any provision can be made and whether or not the provision that will be made will be adequate in the circumstances. Quite simply, the larger the estate is, the more funds are available to the court to be generous when considering what proper and adequate provision is.
If the size of the estate is not sufficient, the court could find itself in a situation that no order for provision would be adequate for the plaintiff however satisfies its requirement to be proper in the circumstances. As discussed above, adequate provision takes into consideration the individuals needs based on the surrounding evidence and circumstances. Proper provision is provision that can be made based on the size of the estate and other factors. In some circumstances, there could be a situation where the provision made by the deceased in his or her last Will and Testament is adequate but not proper. This usually occurs in circumstances where the estate is large and there are more available funds for the court to make an order for proper provision for the applicant.
It is essential to understand that the orders made by the court are almost always relative to the size of the estate.
In Re May  QSC 478 (Annexure 8) the Court considered the way in which the size of the estate may be a significant factor in considering whether an applicant has been left without adequate provision for the applicants proper maintenance and support (In this case, the distributable value of the estate was about $2.255m in 2000). The court held:
'16…Bearing in mind those considerations (referred to in Singer v Berghouse), I must decide whether in the case of each applicant no provision was adequate provision.
17. I think not. The testators failure to include the applicants in his will was not the act of a wise and just father. While each applicant could survive without the testators bounty, the size of his estate sets the test for what should be regarded as adequate provision for proper maintenance and support at a higher level than would apply to the estate of a poor man. The greater and estate “the more may contingencies, even remote contingencies which may arise in the future, be provided for in the assessment of… maintenance”.’
When considering what order should be made by the court, it is essential for the court to also consider the competing claims of other persons that are eligible or entitled to receive a benefit from the state. This includes people such as beneficiaries.
In Vigolo v Bostin (2005) 221 CLR 191 (Annexure 9) it was held (at page 231.2):
‘The age, capacity, means and competing claims of all the potential beneficiaries must be taken into account and weighed with all the other relevant factors.’
When an adult child is making a claim for further provision, the court will consider his or her financial circumstances and the competing financial circumstances of other applicants or the beneficiaries. The financial circumstances of all parties is a significant factor the court considers when determining what is adequate and proper in the circumstances.
Where the beneficiaries of an estate have not provided, affidavit evidence, an account of the financial circumstances, the court will automatically assume that there is no competing claim or any competing financial need. This will have a significant impact on how a court may distribute the estate assets.
Other issues the court must take into consideration is whether or not there was any “disentitling conduct” on the part of the applicant.
Section 41(2)(c) of the Act provides that the court may:
‘refuse to make an order in favour of any person whose character or conduct is such as, in the opinion of the court, disentitles him or her to the benefit of an order, or whose circumstances are such as make such refusal reasonable.’
The concept of 'disentitling conduct' has been considered extensively by the courts.
In Atthow v McElhone  QSC 177 (Annexure 2), citing Ford v Simes  NSWCA 351 (Annexure 10) the Court held:
‘27…it is very important for the maintenance of the integrity of the process in these types of applications that this Court acknowledge once again the entitlement of testators, in certain circumstances, to make no provision for children……..This is particularly so in respect of children who treat their parents callously, by withholding without proper justification, their support and love from them in their declining years. Even more so where that callousness is compounded by hostility.'
There are a number of other cases that deal with conflict and estrangement between a child and parent but it is not common for mere conflict or estrangement to amount to a total bar to a claim. In Kleinig v Neal  2 NSWLR 532 (Annexure 11) for example the court held (at page 540.5):
'A wise parent will recognise that perfect harmony between parent and child is in the nature of things not to be looked for….. Differences of outlook between different generations is not exceptional, it is the general rule, so some friction between parent and child or disappointment in a parents hopes and expectations concerning his child will be accepted by the wise parent as almost inevitable. If it occurs, the parent who is just as well as wise will not allow such disharmony to blind him to the needs of his child for maintenance, education or advancement in life.’
When a court considers disentitling conduct, it must consider when the alleged incident took place, the age of the applicant and the age of the deceased at the time of the incident/incidents, the evidence available by witnesses with respect to the cause of the conflict and whether or not there is any evidence supporting the applicant, the action of the deceased along with the actions of the applicant.
In essence, the court considers a vast and broad scope of information to determine the issue of this disentitling conduct.
It is imperative to note that the adult children are not precluded from making a claim and are more likely than not to be successful if it can be demonstrated that the deceased has not provided for the applicant and furthermore there was no this disentitling conduct.