Family Provision Orders: Contesting an Unsatisfactory Will

The law of will disputes recognises the moral obligation of a person to provide for certain individuals. Where a will has not made provision for these eligible persons, the will can be challenged by that person. In New South Wales, such challenges are generally made pursuant to the Succession Act 2006 (NSW). Importantly, such a challenge may be successful even in circumstances where the deceased believed that their will adequately provided for their dependants, members of their household, or family. The principle is illustrated by the recent Supreme Court case of Davis –v- Davis NSWSC 234.

Unfair Will

This application was heard before Nicholas AJ and was made by Sally Davis, the daughter of the deceased, the late Phyllis Marjorie Davis. The will left Sally three items of jewelry, but the remainder of the estate, which was valued at about $800,000, was left to a second daughter. The reason given by the testatrix for the unequal division was that Sally was a home owner who did not require as much support as the second daughter.

Sally was a single, 71-year-old woman who had indeed owned her own home. However, in 2007 Sally had sold that home in order to invest in a superannuation scheme, which provided her with pension payments. Her pension was supplemented by Centrelink payments. This income was outstripped by her necessary expenditure. The other daughter, who was 76-years-old, was in a similarly precarious financial position. Both daughters had maintained a relatively close relationship with their mother; however the other daughter had lived with and cared for the deceased.

Family provision application

Sally was eligible to seek a family provision order by virtue of her status as the daughter of the deceased. In considering the amount that ought properly have been left to Sally, the Court had regard to a number of matters listed in Section 60(2) of the Act, namely:

  • any family or other relationship between the applicant and the deceased person, including the nature and duration of the relationship,
  • the nature and extent of any obligations or responsibilities owed by the deceased person to the applicant, to any other person in respect of whom an application has been made for a family provision order or to any beneficiary of the deceased person’s estate,
  • the nature and extent of the deceased person’s estate (including any property that is, or could be, designated as notional estate of the deceased person) and of any liabilities or charges to which the estate is subject, as in existence when the application is being considered
  • the financial resources (including earning capacity) and financial needs, both present and future, of the applicant, of any other person in respect of whom an application has been made for a family provision order or of any beneficiary of the deceased person’s estate,
  • any physical, intellectual or mental disability of the applicant, any other person in respect of whom an application has been made for a family provision order or any beneficiary of the deceased person’s estate that is in existence when the application is being considered or that may reasonably be anticipated,
  • the age of the applicant when the application is being considered,
  • any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate of the deceased person or to the welfare of the deceased person or the deceased person’s family, whether made before or after the deceased person’s death, for which adequate consideration (not including any pension or other benefit) was not received, by the applicant,
  • the character and conduct of the applicant before and after the date of the death of the deceased person,
  • the conduct of any other person before and after the date of the death of the deceased person,
  • any other matter the Court considers relevant, including matters in existence at the time of the deceased person’s death or at the time the application is being considered.

In view of these matters and their application to Sally, the court made an order for family provision that it deemed sufficient to relieve her “tight financial position”. In the result, the estate was ordered to make provision for Sally in the amount of $220,000. This amount was held to fairly account for Sally’s circumstances, as well as those of her sister.

It is important to note that Sally’s mother made her will not out of malice, but perhaps out of a misunderstanding of Sally’s true financial position. To seek a family provision order is simply to recognise that a beneficiary’s position may change in a way of which the deceased is not fully aware. In these circumstances, a court is well placed to balance the competing interests of the dependants of a deceased person, with regard to such matters as are listed above. However, it is desirable that such court contests be avoided where possible, because of the costs associated with litigation and the burden placed on the parties in the aftermath of a traumatic life event. Mediation can be a way to accomplish this. If you find yourself in a position where a family provision order may be appropriate, you should seek legal advice immediately. Turner Freeman would be pleased to assist you to this end.

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