The Justice Legislation Amendment (Succession and Surrogacy) Act 2014 came into effect on 1 January 2015 to limit the type of claimant who can claim family maintenance from a deceased estate. The recent case of Brimelow v Alampi  VSC 135 decided 8 April 2016 is the first case under the new regime.
In this case, an adult daughter made a claim on her mother’s estate. The mother had three children and left her entire estate to one son, leaving her daughter and another son out. In her Will, the mother stated, “I direct that I have not made any bequests to my children daughter and other son as I have no meaningful relationship with them”. The other son settled before going to Court for $184,000.
The Court found the mother had a moral duty to provide for the daughter’s proper maintenance and support and she had failed to make adequate provision for the daughter’s proper maintenance and support. The daughter was awarded $170,000 (about 35 per cent of the residuary estate) plus costs as assessed and taxed.
In determining the quantum of the claim, a court must take into account the degree to which the eligible person is not capable of providing adequately for their own proper maintenance and support (Section 91(4)(c)). This provision was intended to limit claims by adult children who are not suffering financial hardship. However, the financial need of the eligible person, as well as any other competing claims of the deceased’s estate, still need to be considered in the context of proper maintenance and support.
What constitutes proper provision for the maintenance and support of an eligible person involves a consideration for the station in life of the eligible person, their age, sex, health and financial resources, the size and nature of the deceased’s estate and the totality of the relationship between the eligible person and the deceased and the relationship between the deceased and any other persons who have legitimate claims upon the estate.
The court’s function is not to ensure a fair distribution of the deceased’s estate or to achieve equality among various claimants.
Who is an ‘eligible person’?
The legislation limits by classification potential claimants as eligible persons to be:
- Claim relates to deaths after 1 January 2015;
- Spouses or domestic partners or former spouses/domestic partners;
- Children (including adopted or step-children) under 18, or who are a full-time student between 18 and 25 or who have a disability;
- Persons believing they were a child and were treated as a child;
- Children not referred to above;
- Registered caring partners;
- Spouses/domestic partners of a child if the child of the deceased has died within one year of the deceased’s death; or
- Members of the deceased’s household.
What matters can the court consider?
The court must not make a Family Provision Order unless it is first satisfied:
- Applicant is an eligible person;
- Deceased had a moral duty to provide for the eligible person’s proper maintenance and support; and
- Distribution of the deceased’s estate under their Will fails to make adequate provision for the proper maintenance and support of the eligible person.
The court must have regard to:
- Deceased’s will;
- Evidence of deceased’s reasons for making the dispositions in the Will; and
- Evidence of the deceased’s intentions in providing for an eligible person.
The court may have regard to:
- Nature of the relationship, including the length of the relationship;
- Deceased’s obligations or responsibilities to the eligible person, other eligible persons and beneficiaries;
- Size and nature of the estate;
- Current and future financial resources, earning capacity and financial needs of the eligible person and any beneficiary;
- Physical, mental or intellectual disability of any eligible person or any beneficiary;
- Age of eligible person;
- Contributions (not for adequate consideration) of the eligible person to build up the estate or to the welfare of the deceased or the deceased’s family;
- Previous benefits to eligible person or any beneficiary;
- Whether the eligible person was being wholly or partly maintained by the deceased, and if so, the extent and basis of such maintenance;
- Liability of any other person to maintain the eligible person;
- Character and conduct of the eligible person or any other person;
- Effect that a Family Provision Order would have on the amounts received from the deceased’s estate by other beneficiaries; and
- Any other relevant matter the court considers relevant.