Family Provision in Succession Law

The recent decision of the Supreme Court of Queensland in McDermott v McDermott & Anor [2023] QSC 163 (20 July 2023) as delivered by Justice Brown provides a helpful summary of the core principles of family provision and adequate and proper maintenance as provided for in Part 4 of the Succession Act 1981 (Qld):

Principles for determining whether adequate provision for the proper maintenance and support of Christopher was made under the Will

[34] Sections 41(1), (1A) and (2) of the Succession Act provide that:

41 Estate of deceased person liable for maintenance

(1) If any person (the deceased person) dies whether testate or intestate and in terms of the will or as a result of the intestacy adequate provision is not made from the estate for the proper maintenance and support of the deceased person’s spouse, child or dependant, the court may, in its discretion, on application by or on behalf of the said spouse, child or dependant, order that such provision as the court thinks fit shall be made out of the estate of the deceased person for such spouse, child or dependant.

(1A) However, the court shall not make an order in respect of a dependant unless it is satisfied, having regard to the extent to which the dependant was being maintained or supported by the deceased person before the deceased person’s death, the need of the dependant for the continuance of that maintenance or support and the circumstances of the case, that it is proper that some provision should be made for the dependant.

(2) The court may—

(a) attach such conditions to the order as it thinks fit; or

(b) if it thinks fit—by the order direct that the provision shall consist of a lump sum or a periodical or other payment; or

(c) 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.

[35] Section 41(1) of the Succession Act requires the Court to undertake a two-stage process, as was set out in the joint judgment of Mason CJ, Deane and McHugh JJ in Singer v Berghouse:[9]

“It is clear that, under these provisions, the court is required to carry out a two-stage process. The first stage calls for a determination of whether the applicant has been left without adequate provision for his or her proper maintenance, education and advancement in life. The second stage, which only arises if that determination is made in favour of the applicant, requires the court to decide what provision ought to be made out of the deceased’s estate for the applicant. The first stage has been described as the ‘jurisdictional question’.”

[36] The majority further described what was involved in the determination of each stage:[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 legitimate claims upon his or her bounty.

The determination of the second stage, should it arise, involves similar considerations. Indeed, in the first stage of the process, the court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant.”

[37] The Queensland Court of Appeal in Hartley v Hartley[11] recently reiterated the two-stage approach to be adopted by a court in determining a family provision application, adopting the observations of Mullins J (as her Honour then was) in Pizzino v Pizzino:[12]

“[50] The first stage of the process or the jurisdictional question is one of fact determined at the date of the hearing, even though it involves the making of value judgments on whether the applicant has been left without adequate provision for his proper maintenance and support, as at the date of the deceased’s death: Singer at 209-211. The factors that will be considered on the jurisdictional question include the applicant’s financial position, the size and nature of the 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 on her bounty: Singer at 210. The nature of the enquiry undertaken by the court on the jurisdictional question was analysed in Hills v Chalk [2008] QCA 159 at [39]– [41] (per Keane JA), [128]-[139] (per Muir JA) and [212] (per Fraser JA).

…

[53] If it is necessary to proceed to the second stage of the process, it involves similar considerations to the jurisdictional question (Singer at 210) and s 41(1A) of the Act is applicable. In addition to the matters specified in s 41(1A) of the Act, the respondents and applicant’s sons also rely on the application of s 41(2)(c) of the Act.

[54] In determining the second stage, the court exercises its discretion on whether to make an order in favour of the applicant by reference to the circumstances as they exist at the date of the order: White v Barron [1980] HCA 14; (1980) 144 CLR 431, 444.

[55] The jurisdiction under provisions such as s 41(1) of the Act does not entitle the court to rewrite the will in accordance with its own ideas of fairness or justice: Hughes at 146.”

[38] As to the first stage and determining the question of jurisdiction, the phrase “adequate provision for the proper maintenance and support” means “maintenance and support … at a level or degree appropriate to the applicant in all of the circumstances of the case.[13] The concept is a relative one, with no fixed standards, and the Court is left to form opinions upon “the basis of its own general knowledge and experience of current social conditions and standards.”[14] According to the Privy Council in Bosch v Perpetual Trustee Co Ltd, the amount to be provided is not to be measured solely by the need of maintenance, otherwise the Court would only be concerned with adequacy.[15] The Privy Council in particular noted that the use of the word “proper” is of significance and “proper maintenance” required the Court to take into consideration the size of the estate left by the deceased. If the estate is a large one, the Court will be justified in meeting contingencies that might have had to be disregarded if the estate was small.

[39] In Hills v Chalk, Keane JA stated:[16]

“Judicial statements of high and longstanding authority explain that the evaluative assessment whether ‘adequate provision’ has not been made for the ‘proper maintenance and support’ of an eligible person must be made from the perspective of the deceased person on the assumption that the deceased was alert to the considerations relevant to the making of ‘adequate’ provision for the ‘proper maintenance and support’ of the claimant. In Bosch v Perpetual Trustee Co, Lord Romer, delivering the advice of the Judicial Committee of the Privy Council said that ‘in every case the Court must place itself in the position of the testator, and consider what he ought to have done in all the circumstances of the case, treating the testator for that purpose as a wise and just, rather than a fond and foolish, husband or father.’ There have been expressions of doubt as to the validity of supporting the postulate of the wise and just testator or testatrix by referring, as Lord Romer did, to the ‘moral duty’ of the testator or testatrix. In Singer v Berghouse, Mason CJ, Deane and McHugh regarded the introduction of notions of ‘moral duty’ or ‘moral obligation’ as a gloss upon the language of the Act. Neither these observations in Singer v Berghouse nor the discussion of the point in Vigolo v Bostin cast doubt on the continuing validity of approaching the determination of whether ‘adequate provision’ has been made for the ‘proper maintenance and support’ of an eligible claimant by reference to the postulate of a wise and just testator or testatrix.” (footnotes omitted)

[40] In considering the question of adequate provision, the Court must look to what is “necessary or appropriate prospectively from that time”, namely the time of death, including events which are contingent as well as those which are more certain or likely.[17] Unusually, hindsight may be taken advantage of provided the subsequent occurrences fall within the range of reasonable foresight.[18]

[41] As is apparent from the authorities cited above, the Court must take into account all relevant circumstances including the applicant’s financial position, the size and nature of the estate, the relationship between the applicant and the deceased and between the deceased and others with a legitimate claim upon the estate, whether the person is able-bodied, and the effect of inflation.[19] The standard of living of the applicant during the deceased’s lifetime is also relevant, as is the amount necessary for the applicant’s maintenance and survival.[20]

[42] In making its determination, the Court must take into account those with competing claims on William’s estate. Those claims are the claims of persons who would expect to be benefited under a deceased’s will, even if those persons would not be eligible to make a family provision claim by virtue of their circumstances.[21] In the present case, it is the claims of William’s three children and grandchildren to which the Court has regard. It was not in dispute that William’s grandchildren should receive the benefit of their legacy under the Will regardless of the outcome of this application.

[43] The Court’s role in determining the family provision application is not to seek to achieve a “fair” or “equitable” disposition of the deceased’s estate.[22] Nor is the purpose of the legislation to ensure that siblings are treated equally.[23]

A link to the case can be found here.

[9] [1994] HCA 40; (1994) 181 CLR 201 at 208–209.

[10] Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 at 209–210 affirmed in Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191 at 207 [37], 218 [74] and 220 [82]–[83].

[11] [2022] QCA 96.

[12] [2010] QSC 35 at [49]–[55].

[13] Anthony Dickey, Family Provision After Death (Law Book Co, 1992) at 102.

[14] Goodman v Windeyer [1980] HCA 31; (1980) 144 CLR 490 at 502.

[15] [1938] AC 463 at 478.

[16] [2008] QCA 159 at [40].

[17] Coates v National Trustees Executors and Agency Co Ltd [1956] HCA 23; (1956) 95 CLR 494 at 508 (per Dixon J).

[18] White v Barron [1980] HCA 14; (1980) 144 CLR 431 at 441 (per Mason J).

[19] Pontifical Society for Propagation of Faith v Scales [1962] HCA 19; (1962) 107 CLR 9 at 19.

[20] Daley v Barton & Anor; Barton v Daley [2008] QSC 228 at [150].

[21] Albury & Anor v Sammut [2019] QSC 105 at [74].

[22] Perpetual Trustees Queensland Limited v Mayne [1992] QCA 417; GE Dal Pont, Law of Succession (LexisNexis, 3rd ed, 2021) at [15.14] and the cases cited therein.

[23] See, for instance, Higgins v Higgins [2005] QSC 110; (2005) 2 Qd R 502 at [46].