If you are an estranged family member contesting a Will, a recent Tasmanian case highlights what the court considers in determining the claim for family provision, writes Attwood Marshall Lawyers Estate Litigation Senior Associate Lucy McPherson.
If contesting a Will, the Tasmanian decision of Booth v Brooks  TASSC 35, highlights the circumstances considered by the court in determining a claim for family provision. In this case, the court awarded an estranged daughter the sum of $800,000.
The father, Mr Triffett, died aged 70 years. He was survived by his de facto partner of about 40 years, two sons (both children of the de facto partner) and a daughter (born of a prior relationship).
Mr Tiffett was a wealthy man and his estate at the time of his death was valued in the vicinity of $6 million. He left a Will leaving his entire estate to his de facto partner, provided that she survive Mr Triffett for one month. In the event she did not survive Mr Triffett the estate was to be held on trust for his two sons. Mr Triffett’s daughter was not provided for under the terms of the Will.
Mr Triffett’s daughter made a claim on the estate pursuant to family provision legislation. For anyone contesting a Will, eligibility must be proven. As a child of Mr Triffett, his daughter was eligible to apply for a family provision order. The legal test applied in this case was as follows:
- At the date of Mr Triffet’s death, was his daughter left without adequate provision for her proper maintenance and support; and
- What provision, if any, having regard to all of the circumstances of the case, should be made for Mr Triffett’s daughter.
The determination of the first question “calls for an assessment of whether the provision (if any) made was inadequate for what…… …was the proper level of maintenance etc. appropriate for the applicant having regard… …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 legitimate claims upon his or her bounty“.
If in the exercise of the discretion the court in the second stage (what provision should be made), the provision which can be made “is limited to doing only that which is necessary to satisfy the obligation of the deceased to make adequate provision for the proper maintenance and support of the applicant”.
The court found in favour of Mr Triffett’s daughter on the first issue by ruling that she was left without adequate provision for her maintenance and support. The court said the following factors were taken into account in coming to its decision:
- The significant size of Mr Triffett’s estate which was in the vicinity of $6 million.
- The daughter’s strong financial need. The daughter’s only assets were a car and household effects with a combined value of approximately $4,500. She was reliant on her Centrelink pension as her only form of income. She also had liabilities of about $6,000.
- The lack of affection Mr Triffett demonstrated to his daughter while she was growing up and the lack of financial support provided to his daughter during her formative years.
On the second issue (that is, what provision should be made) the court ruled that Mr Triffett’s daughter should be awarded a sum of $800,000 from the estate. In coming to its decision, the court considered the following:
- The amount of the provision to be awarded is not like an award under a personal injury claim. It is to be calculated by reference to a moral obligation rather than a legal right.
- The factors which should be considered include an assessment of what is proper by reference to a wise and just testator aware of all the circumstances of the case and acting upon prevailing community standards.
- The amount should be sufficient to relieve the applicant of the uncertainties associated with public spending on housing, healthcare, pensions and aged care.
- The amount should provide the daughter with enough to purchase a low maintenance home and a fund of money to be used toward outgoings on the property, health insurance, medical services, a little extra income to cover the possibility that pension increases may not keep pace with rises in living expenses, including the cost of electricity and petrol, some provision for aged care later in life and a financial buffer against the fluctuations of life.
His Honour also stated “some extra benefit is justifiable on the basis that the applicant may have done better in life had she received more paternal support, affection, encouragement and discipline during her childhood and formative years”, before making the award of $800,000 in favour of the daughter.
Relevantly, the Judge noted that for anyone contesting a Will: “It is not for a court to re-write a will according to the judge’s particular view as to what may be fair. The application is to be assessed from the perspective of a wise and just testator looking, within his means, and having due regard to his other obligations, to provide no more and no less than what according to community standards ……. is a sum which, if available, would be adequate to properly accommodate the obligation of providing proper maintenance and support for the applicant.”
If you are considering contesting a Will, you should seek professional legal advice for the best chance at a successful family provision claim.