Experienced estate litigation solicitor, and Attwood Marshall Lawyers Senior Associate, Lucy McPherson, discusses the Will contest over Bob Hawke’s estate.
Two months after the death of Bob Hawke in May of this year, his daughter Rosslyn Dillon is preparing to take legal action against his second wife over his Will.
Mr Hawke reportedly gave $750,000 to each of his three children, including Ms Dillon, but left the rest of his estate, including the proceeds of the sale of his $15 million home on the water in the Sydney suburb of Northbridge to his widow.
Ms Dillon claims she has been left without adequate provision from her father’s estate. Ms Dillion has engaged lawyers to bring a family provision claim against Mr Hawke’s widow in relation to his multi-million-dollar estate.
What is a family provision claim?
In simple terms, a family provision claim is where an eligible person makes an application to the Court for a portion or larger portion of a deceased person’s estate in circumstances where they have not been adequately provided for under the terms of the Will.
Family provision law is very established law. It has been around for over a century in both New South Wales and Queensland.
Family provision Law is heavily grounded in the notion that we have a moral duty or obligation to make provision for certain people in our lives when we die.
In the case of Bob Hawke, Ms Dillon is claiming that the amount of $750,000 is not adequate provision for her in the circumstances.
Who can bring a family provision claim?
Not just anyone can bring a family provision application. Only certain categories of people defined under the legislation are eligible to apply to the Court for a family provision order.
In New South Wales, the following are “eligible persons” who may apply to the Court for a family provision order:
- a) a wife or husband of the deceased person;
b) a person with whom the deceased person was living in a de facto relationship at the time of the deceased person’s death;
c) a child of the deceased person (including an adopted child but not including a stepchild. For a stepchild to be eligible they must also demonstrate dependency on the deceased person – see discussion below);
d) a former wife or husband of the deceased person;
e) a person:
who was at any particular time wholly or partly dependent on the deceased person; and
ii. who is a grandchild’s of the deceased person or was, at any particular time, a member of the household of the deceased person;
f) a person with whom the deceased was living in a close personal relationship.
A “close personal relationship” is a close personal relationship (other than a marriage or a de facto relationship) between two adult persons, who are living together, one or each of whom provides the other with domestic support and personal care.
As a child of Mr Hawke, Ms Dillon is eligible under the New South Wales legislation.
What about in Queensland? Who is eligible to apply for a family provision order in Queensland?
In Queensland, the following are “eligible persons” who may apply to the Court for a family provision order:
- a) a spouse (including a husband/wife, de facto partner, civil partner or dependent former husband or wife or civil partner);
b) a child of the deceased person (including a stepchild or adopted child); and
c) a dependent of the deceased person.
A “dependent” of the deceased person means:
- a) a parent of the deceased person; or
b) the parent of a surviving child of the deceased person under the age of 18 years; or
c) a person under the age of 18 years;
who was being wholly or substantially maintained or supported by the deceased person at the time of the deceased person’s death.
Some of the legislative definitions in this area of law are complicated so it is important to seek specialised advice.
What will the Court take into account when deciding whether or not to make an order for family provision?
Once eligibility is established, the legal test applied in family provision applications is, in summary, as follows:
- whether there is inadequate provision for the applicant’s proper maintenance, education and advancement in life under the Will of the deceased or the intestacy rules (this is a question of fact although it necessarily involves some value judgment); and
- if so, what if any, provision ought to be made out of the estate in favour of the applicant (this is a discretionary exercise).
The Court will examine all relevant circumstances. In particular the following matters are relevant for the Court’s determination of the two-stage test as set out above:
- the nature and quality of the relationship between an applicant and a deceased;
- the nature of the moral obligations or responsibilities owed by the deceased person to the applicant or a competing claimant (a beneficiary of the estate);
- the size and nature of the estate of a deceased;
- the nature and extent of the applicant’s present and reasonably anticipated future needs, including financial and health-related needs;
- the nature and strength of the claims to testamentary recognition by a deceased of those taking benefit under a deceased’s Will;
- any contribution, financial or otherwise, direct or indirect, by an applicant to the property or welfare of the deceased person;
- the character and conduct of the applicant;
- any provision made for the applicant by the deceased person (either during the deceased person’s life or after);
- evidence of testamentary intentions of the deceased person; and
- whether the applicant was being maintained by the deceased person.
This discretionary exercise, in which the Court considers all of the facts and circumstances, is undertaken to evaluate what provision community standards would require a person in the position of the deceased person to make for the applicant.
If you think you are eligible to contest an Estate and would like further advice please contact Estate Litigation Department Manager, Amanda Heather on direct line (07) 5506 8245 or by email on aheather@attwoodmarshall.com.au to arrange an appointment.
