Family provision applications are not concerned with achieving fairness or equality. Instead, the statutory purpose of these applications is to adequately provide for an eligible person (including a spouse, child or dependent).
Family provision applications are a necessity when it comes to estate law.
They enable family members, who may have been neglected or inadequately provided for by a will, to seek a court order for property maintenance, care and support from the estate.
Family provision applications are not concerned with achieving fairness or equality. Instead, the statutory purpose of these applications is to adequately provide for an eligible person (including a spouse, child or dependent).
It is often assumed that only disgruntled relatives contest a will to improperly benefit from a loved one’s death. However, this is often far from the case.
Sometimes a deceased’s intended provision of assets is inaccurately reflected by their will or a will may simply not provide for a person that requires provision (such as a dependent).
John v John [2010] NSWSC 937 demonstrates the reality and necessity of family provision applications.
In this case, the deceased gave her adult son (“the Applicant”) a lifetime right to occupy the family home. The Applicant had always lived with the deceased, was of low intelligence and received social security benefits. The deceased sold the family home and purchased a subsequent property. However, she failed to amend her will to include the life interest in the subsequent property. The deceased had two other adult sons who were appointed as the executors of the estate.
As the Applicant’s gift only referred to the family home (not the subsequent property), the gift failed to occur and instead all three children inherited the property in equal shares. The Applicant brought a family provision application.
The court agreed the Applicant’s provision was inadequate. It was ordered that:
- The Applicant receive a five-sixths share of the net sale proceeds (after deducting vendor and executor costs). Her Honour Ward J stated the provision would enable the Applicant to purchase a property wherein the Applicant would be adequately accommodated. Her Honour noted the Applicant was capable of moving, as he had done so in the past. She also acknowledged this provision left little remaining funds for the other two siblings; however this was acceptable given the Applicant received social security benefits and lived modestly, whereas they were comparatively well off.
- The remaining one-sixth of the sale proceeds was left to one of the sons to pay a mortgage.
- The last son received no share, however her Honour stated this was necessary to provide for the Applicant.
The notion that only disgruntled family members contest a will is far from the truth as this case demonstrated.
The reality is that family provision applications are a valuable tool which enable eligible persons to seek adequate provision for their maintenance, care and support in the future.
There are also cases where a will-maker changes their will to exclude or reduce the entitlement of certain of their children after a family feud or period of estrangement.
For further information on family provision applications, visit our Will & Estate Disputes Page here. Wills + Estate Disputes
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