In order for the Court to make a family provision order in relation to the estate of a deceased person, the applicant must be an eligible person, there must be factors which warrant the making of the application having regard to its circumstances, and adequate provision for the applicant’s proper maintenance, education or advancement in life must not have been made either in the deceased’s will or by operation of the rules of intestacy.
Where an applicant has not been provided for at all, there is no doubt that adequate provision has not been made, however where the applicant has been provided for, how does the court decide whether the provision made is ‘adequate’? Further, what amount of maintenance is considered ‘proper’, and how far must the provision advance the applicant’s life?
For the Proper Maintenance, Education or Advancement in Life?
The phrase ‘for the proper maintenance, education or advancement in life’ is undefined in the Succession Act 2006 (NSW). Of these three, education is the least difficult to interrogate and has been given its ordinary meaning by the court. However, what amount of maintenance is considered proper, and the extent to which the applicant’s life should be advanced are far less easy questions to answer.
Before the enactment of the Succession Act (NSW), the phrases proper maintenance and advancement in life were examined by the High Court in Vigolo v Bostin [2005] HCA 11. Callinan and Heydon JJ suggested that maintenance may imply a ‘continuity of a pre-existing state of affairs’ or provision which exceeds a ‘mere sufficiency of means’. In regards to advancement the pair suggested that the term imported a standard of ‘provision beyond the necessities of life’. These definitions were echoed in Alexander v Jansson [2010] NSWCA 176 where Brereton J suggested the term proper maintenance went beyond ‘bare sustenance’ and required an examination of the entirety of the applicant’s circumstances such as their age, status, relationship with the deceased, and financial circumstances.
Evidently, what is meant by these terms will depend on the circumstances of the individual applicant, however, the precedent suggests that the court will import a higher standard than the bare necessities for survival.
Adequate Provision?
The term provision is undefined in the Act but was noted in Diver v Neal [2009] NSWCA 54 to cover the various forms of support an individual can give to another. Moreover, as pointed out in Dimic v Djekovic [2014] NSWSC 1502, what is meant by adequate provision is also undefined, and there are no criteria suggested as to the circumstances which would or would not constitute inadequate provision. This is perhaps with good reason as what is adequate in one set of circumstances may not be adequate in another. Consequently, determining whether the provision made in a certain matter is adequate has been said to involve a ‘multifaceted evaluative judgment’ (Foley v Ellis [2008] NSWCA 288), an ‘intuitive assessment’ (Kay v Archbold [2008] NSWSC 254), and an ‘evaluative determination of a discretionary nature’ (Szypica v O’Beirne [2013] NSWSC 297). Naturally, such evaluations are imprecise and highly circumstance specific. Section 60 of the Succession Act (NSW) outlines a number of matters which may be considered by the Court in making this evaluation. The relationship between and nature of the obligations owed by the deceased to the applicant, the extent of the deceased estate, the financial resources and needs of the applicant, and whether there are any other persons liable to support the applicant are all relevant considerations. Additionally, if there is any mater not listed in section 60 of the Act which the court considers relevant they may take account of that also.
Although there is no legislative certainty as to what is meant by ‘adequate provision for the applicant’s proper maintenance, education or advancement in life’, what is certain is that the phrase affords the decision-maker a wide discretion. As the evaluation is highly context-specific, it is open to an applicant to submit a variety of arguments as to why they feel they haven’t been adequately provided for. Therefore, if you have been left out of a loved one’s will, or provided for but the provision is to your mind inadequate, contact our experienced will and probate team at Dormers today.
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