Overview of General Legal Principles Relating to Claims Under Inheritance (Family & Dependents Provision) Act 1972 (WA)

Marco Tedeschi

 

 

1. Section 6(1) of the Inheritance (Family & Dependents Provision) Act 1972 sets out the circumstances in which the Court may change the disposition of a deceased’s estate under a Will.
2. Section 7 enumerates the categories of eligible claimants.  They include children of the deceased and in limited circumstances, grandchildren.
3. In regard to grandchildren, Section 7(1)(d) allows a grandchild of the deceased who at the time of the death of the deceased was being wholly or partly maintained by the deceased or whose parent the child of the deceased, had predeceased the deceased living at the date of the deceased to make a claim. 
4. Section 6(1) requires the Court to carry out a two stage process.
5. The first stage involves determining whether the disposition of the deceased estate by Will is not such as to make adequate provision from the estate for the proper maintenance, support, education or advancement in the life of the claimant.
6. The first stage raises a jurisdictional question which means that the court’s power to make an order in favour of the claim is conditional upon first being satisfied of the state of affairs referred to in the opening part of Section 6(1), ending with the words, “made under this Act”. 

Singer -v- Berghouse [No. 2] (1994) 181 CLR 201 per Mason CJ, Deane and McHugh JJ at 208-209;  

Vigolo -v- Bostin (2005) 221 CLR 191 per Gleeson CJ at 196-197 [426], per Gummow & Hayne JJ at 212-213 [56];

Devereaux-Warnes -v- Hall [No. 3] [2007] WASCA 235 Buss J para [67];

Andre v Perpetual Trustees WA Ltd [2009] WASCA 14 per Steytler J paras [44]-[48].

Butcher -v- Craig [2010] WASCA 92 para [3];

7. The first stage involves a question which is strictly one of fact although it involves the exercise of value judgements.
8. The evaluative character of the decision arises because the Court must determine whether the claimant has been left without “adequate” provision for his or her “proper” maintenance. When doing so the Court puts itself in the position of the testatrix and consider what ought to have been done in the particular circumstances, treating the testatrix as wise and just rather than fond and foolish.

White -v- Baron [1980] 144 CLR 431 per Mason J at 441-443, per Wilson J at 456‑457;

Goodman -v- Windeyer [1980] 144 CLR 490 per Aickin J at 509;

Singer per Mason CJ, Deane and McHugh JJ at 210-211.

Devereaux-Warnes -v- Hall per Buss J para [68].

Andre v Perpetual Trustees WA Ltd [2009] WASCA 14 per Steytler J paras [49]-[50]

9. In answering the first question the Court should not proceed upon the assumption freedom of testamentary disposition allows the Court to re-write the Will of a testator or so encroach upon the testator’s decisions expressed in the Will have only a prima facie effect, the real dispositive power being vested in the Court. There must have been a breach of the testators moral duty (as used by the majority in Vigolo) in not making adequate provision for the proper maintenance, support education or advancement of the applicant such that the testatrix failed to make a testamentary provision which a just and wise person would have thought it her moral duty to make in favour of the applicant had she been fully aware of the relevant circumstances.

Andre v Perpetual Trustees WA Ltd [2009] WASCA 14 per Steytler J para [50]

1. Stage two only arises if the jurisdictional question is determined in favour of the claimant, involves the exercise of discretion. The Court may order that such provision as the Court thinks fit be made out of the deceased’s estate for the proper maintenance, support, education or advancement in life of the claimant. 

White -v- Baron per Mason J at 442-443, per Aickin J at 449;

Goodman -v- Windeyer per Gibbs J at 501-502, per Aickin J at 509;

Singer -v- Berghouse per Mason CJ, Deane and McHugh JJ at 211;

Devereaux-Warnes -v- Hall perBuss J para [69];

Butcher -v- Craig para [4].

1. The jurisdictional question which arises at the first stage is formulated and determined as at the date of the deceased, having regard to all material facts that existed at the date of the death, whether the deceased knew of them or not, and all material eventualities that might at that date reasonably have been foreseen by the deceased who knew the facts.

Coates v National Trustees Executors and Agency Co. Limited (1956) 95 CLR 494 per Dixon CJ at 508, per Webb J at 515-516, per Kitto J at 526-528;

Hughes -v- National Trustees Executors and Agency Co. of Australia Limited (1979) 143 CLR 134 per Gibbs J at 147-148;

White -v- Baron per Barwick CJ at 437, per Mason J at 441, per Aickin J at 448-449;

Goodman -v- Windeyer per Gibbs J at 498-499, per Aickin J at 509;

Devereaux-Warnes -v- Hall per Buss J para [70].

2. At the second stage the Court exercises its discretion to order adequate provision for the proper maintenance, support, education or advancement in life of the claimant by reference to the circumstances as they exist at the date of the order.

Coates -v- National Trustees Executors and Agency Co. Limited supra per Dixon CJ at 509;

White -v- Baron per Mason J at 441;

Goodman -v- Windeyer per Gibbs J at 499; 

Devereaux-Warnes-v- Hall per Buss J para [71];

Andre v Perpetual Trustees WA Ltd para [45];

Butcher -v- Craig para [24].

3. “Proper” denotes something different to the word “adequate”. A small sum may be sufficient for the “adequate” maintenance, support, education or advancement in life of the claimant, but having regard to all the circumstances, including the size of the deceased’s estate and the lifestyle to which the claimant had become accustomed during the deceased’s lifetime, may be insufficient for his or her “proper” maintenance.
4. By contrast, a sum may be quite insufficient for the “adequate” maintenance, support, education or advancement in life of the claimant, and nevertheless, be sufficient for his or her maintenance, support, education or advancement in life on the scale that is “proper” in all the circumstances.

Bosch -v- Perpetual Trustees Co. Limited [1938] AC 463 at 476;

Worladge -v- Doddridge (1957) 97 CLR 1 per Kitto J at 14-15;

White -v- Baron per Wilson J at 457;

Devereaux-Warnes -v- Hall per Buss J para [73];

Pogorelic -v- Banovich [2007] WASC 45 [62];

Andre v Perpetual Trustees WA Ltd per Steytler J para [52];

Butcher -v- Craig para [21].

5. The determination of whether the provision, if any, made for the claimant is “adequate” for his or her “proper” maintenance, support, education or advancement in life involves a scrutiny of the requirements of the claimant for maintenance, support, education or advancement in life that were reasonably foreseeable by the deceased, but also an examination of the totality of the relationship between the claimant and the deceased.

Goodman-v- Windeyer per Gibbs J at 496-497;

Hunter -v- Hunter (1987) 8 NSW LR 573 per Kirby P at 575;

Singer -v- Berghouse per Mason CJ, Deane and McHugh JJ at 209-210;

Devereaux-Warnes -v- Hall [No. 3], Buss J para 74.

6. The totality of the relationship includes:

(a)           Any sacrifices made or services given by the claimant to or for the benefit of the deceased;

(b)          Any contributions by the claimant to the building up of the deceased’s estate; and

(c)           The conduct of the complainant towards the deceased and of the deceased towards the claimant.

Coates -v- National Trustees Executors and Agency Co. Limited, per Dixon CJ at 510;

Hughes -v- National Trustees Executors and Agency Co. of Australia Limited, per Gibbs J at 147;

Goodman-v- Windeyer per Gibbs J at 479;

Devereaux-Warnes -v- Hall per Buss J para [75].

7. Any sacrifices, services or contributions whether described as giving rise to a moral duty or moral claim or not, are relevant as part of the totality of the relationship between the claimant and the deceased, but are neither a necessary nor sufficient condition for the making of an order under the Act.

Permanent Trustee Co. Limited -v- Fraser (1995) 36 NSW LR 24 per Kirby P at 28, per Sheller JA at 42;

Devereaux-Warnes -v- Hall per Buss J para[76].

8. “Adequate” is concerned with quantum.  “Proper” prescribes the standard of maintenance, support, education or advancement.  The propriety of the provision, if any, for the claimant is assessed by reference to all the circumstances including contemporary accepted community standards.

Bosch -v- Perpetual Trustee Co. Limited at 476-479;

Worladge v Dodridge per Williams and Fuller JJ at 11, per Kitto J at 15-18;

White, Per Steven J at 440, per Mason J at 441-445, per Wilson J at 457;

Goodman per Gibbs J at 479, 502;

Singer per Mason CJ, Deane and McHugh JJ at 211, per Gaudron J at 227;

Devereaux-Warnes -v- Hall per Buss J para [77];

Andre -v- Perpetual Trustees WA Limited, per Steytler J paras [51]-[53].

9. The capacity of a court to make “adequate” provision for the “proper” maintenance, support, education or advancement of the claimant may be constrained by considerations such as the size and nature of the deceased’s estate, and competition from other persons having competing claims upon the deceased’s bounty, and their relative urgency.

McCosker -v- McCosker [1957] 97 CLR 566 per Dixon CJ and Williams J at 571-572;

Singer, per Guadron J at 227;

Barns -v- Barns [2003] 214 CLR 169 per Gleeson CJ at 174 [4];

Devereaux-Warnes -v- Hall per Buss J para 78;

Bondelmonte -v- Blanckensee [1989] WAR, 307;

Andre -v- Perpetual Trustees WA Limited [2009] WASCA 14 per Steytler J para [53];

Butcher -v- Craig para [24].

1. The claimant may fail to establish the disposition of the deceased estate was not such as to make adequate provision for his or her proper maintenance, support, education or advancement even though no provision was made for him or her in the Will.

Goodman, Murphy J at 505;

Singer, per Mason CJ, Deane and McHugh JJ at 210;

Devereaux-Warnes -v- Hall per Buss J at [79].

1. The words “adequate” and “proper” are relative, the proper maintenance and support of a son claiming statutory provision must be relative to his age, sex, condition and mode of life and situation generally.  What is “adequate” must be relative not only to his needs but his own capacity and resources for meeting them.

Pontifical Society for the Propagation of the Faith -v- Scales [1962] 107 CLR 9, per Dixon CJ at 19;

Devereaux-Warnes -v- Hall per Buss J para [80].

2. “Need” refers to the claimant’s inability to satisfy his or her financial requirements from his or her own resources.

Singer per Gaudron J at 227.

Devereaux-Warnes -v- Hall per Buss J para [81].

Andre -v- Perpetual Trustees WA Limited [2009] WASCA 14 per Steytler J para [54].

3. “Need” has also been used in the context of a value judgment or conclusion that the claimant is in need of maintenance or support because inadequate provision has been made for his or her proper maintenance.

Gorton -v- Parks [1989] 17 NSWLR 1 per Bryson J at 10-11.

Devereaux-Warnes -v- Hall, per Buss J para [82].

4. The words “maintenance, support and advancement” were considered in Vigolo by Callinan & Heydon JJ.  Maintenance may imply a continuity of a pre-existing state of affairs, or provision over and above a mere sufficiency of means upon which to live.  Support may imply provision beyond bare need.  The use of the two terms serves to amplify the powers conferred upon the Court.  Furthermore, provision to secure or promote advancement would ordinarily be provision beyond the necessities of life.

Andre -v- Perpetual Trustees WA Limited per Steytler J para [35].

5. In Vigolo -v- Bostin  the Trial Judge McClure J rejected a claim by the applicant son of the deceased, who was relatively well off and did not need provision from the deceased’s estate to maintain his lifestyle. 

Vigolo -v- Bostin [2001] WASC 335 at para [127].

Katich -v- Rendell [2010] WASC 101 per Master Sanderson para [21].

6. The determination of whether the disposition of the deceased estate was not such as to make adequate provision for the proper maintenance, support or education of the claimant and always will involve an evaluation of the provision, if any, made for the claimant on the one hand, and the claimant’s “needs” that cannot be met from his or her own resources on the other.

Hunter, per Kirby J at 575.

Devereaux-Warnes -v- Hall per Buss J para [83].

7. Although the existence or absence of needs which the claimant cannot get from his or her own resources will always be highly relevant, and often decisive, the statutory formulation and the issue of every case, is whether the disposition of the deceased’s estate was not such as to make adequate provision for his or her proper maintenance, support, education or advancement.

Singer, per Gaudron J at 227.

Gorton -v- Parks, per Bryson J at 6-11;

Collicoat -v- McMillan [1999] 3VR 803 per Ormiston J at 816 [38], 820 [47].

Devereaux-Warnes -v- Hall per Buss J para [84].

8. “Moral duty” has been used as a short hand expression referring to the deceased’s “duty” to make adequate provision for the proper maintenance, support, or advancement of persons within the statutory class, the nature and extent of that “duty” being determined by reference to the totality of the relationship between the claimant and the deceased, and contemporary accepted community standards.

Devereaux-Warnes -v- Hall per Buss J para [86].

9. The concept of “moral duty” of the deceased may be useful as part of understanding the legislative purpose embodied in Section 6(1) of the Act, and in the understanding application of the statutory text however, but it does not amount to a gloss on the statutory language.

Vigolo -v- Bostin, per Gleeson J. at 202 [21], per Gummow & Hayne JJ at 218 [73];

Devereaux-Warnes -v- Hall [No. 3], Buss J. paragraphs [86] to [89].

1. Freedom of testamentary disposition is a relevant and important consideration.  A Will should only be disturbed if and to the extent that “adequate” provision has not been made for the proper maintenance, support, education or advancement in life of the claimant.  The provision was never meant to allow the Court to re-write the Will of a testator or so encroach upon the testator’s decisions expressed in the Will have only a prima facie effect, the real dispositive power being vested in the Court..

Pontifical Society for the Propagation of the Faith -v- Scales, per Dixon CJ at 19;

Hunter -v- Hunter (1987) 8 NSW LR 573 per Kirby P at 576;

Andre v Perpetual Trustees WA Ltd per Steytler J para [50].

1. There is High Court authority critical of awards being made on any presumed equality of treatment between beneficiaries or as a fixed percentage of the estate. The Act is to provide maintenance not legacies. Equality is not something to be achieved by the application of the Act, although in some cases equality may set the limit to the order to be made-for instance, where there is not enough to provide proper maintenance for all entitled to consideration whose need is the same.

Blore –v- Lang [1960] 104 CLR 134 per Fullagar & Menzies JJ at 135 and Kitto J at 136;

Nelson -v- Nelson & Anor [1999] WASCA Library No. 990136A per Kennedy J. page 9.

2. In determining an application under Section 6(1) the Court should have regard to the deceased’s “moral duty” to other people who are within the statutory class of claimants (regardless of whether they are also beneficiaries of the deceased’s Will) and the moral claims of those other people against the deceased when considering the jurisdiction question and, if that question is resolved in favour of the claimant, at the second stage especially where the deceased’s estate is of modest or moderate value.

Sampson -v- Sampson [1945] 70 CLR 576 per Rich, Dixon and McTiernan JJ at 584-585;

McCosker per Dixon CJ and Williams J at 571-572;

Blore -v- Lang per Dixon J at 128;

Pontifical Society for the Propagation of the Faith, per Dixon CJ at 19;

Anderson -v- Teboneras [1990] VR 527, Ormistan J at 533-535;

Devereaux-Warnes -v- Hall [No. 3] per Buss J at [95].

3. Section 6(3) provides discretion to refuse to make an order in favour of any person on the ground that his character or conduct is such as in the opinion of the Court to disentitle him to the benefit of an order, or on any other ground which the Court thinks sufficient.

Blore -v- Lang supra per Windeyer J at 134;

Goodman -v- Windeyer supra; per Gibbs J at 498

Nelson -v- Nelson & Anor per Kennedy J.

4. It is proper to consider a long period of separation between the claimant and the deceased both when considering the threshold or jurisdictional questions or the question whether or not in the exercise of discretion an award should be made.

Delacour -v- Waddington [1953] 89 CLR 117 per Dixon CJ, Kitto and Taylor JJ at 126;

Goodchild -v- James [1994] 13 WAR 229 per Ipp J. at 238-239 where cases are reviewed;

Brown -v- McAuley [1999] WASC per Murray J paras 18-19.

5. In the case of a claim by an adult son, if it be seen that the relationship was such that the claimant maintained an association of affection, service and regard for the deceased during that person’s lifetime, then a moral claim may well be generated.  On the other hand an estrangement, particularly in later years, of the claimant from the deceased may well weaken substantially the moral force of the asserted claim if it does not destroy the claim entirely.  Particularly that may be the case where the claimant’s behaviour or decision has been a major cause of the estrangement, loosening, if not destroying, the bonds of natural affection and obligation as between the claimant and the deceased. 

Brown –v- McAuley per Murray J at para 19.

Nicole –v- McComish & Anor [1995] WASC Library No. 950299 per Master Adams applying Re Clissold [1970] 2 NSWR 619 and re: Mercer [1977] 1 NZLR 469 and re: Wentworth v Wentworth; Unreported; SC NSW.

6. The position of grandchildren was considered in Kitson -v- Franks [2001] WASCA 134.  Parker J stated:

“The issue of child or grandchild may also be a relevant consideration, if the jurisdictional test has been satisfied, when it comes to the exercise of a discretion as to what provision should be made especially when there are competing claims and there is insufficient in the estate to satisfy all of them.  As has been observed by King CJ the relative remoteness of the relationship with grandchildren is a factor to be taken in to account in determining what would be adequate provision for their advancement in life; in The Estate of Puckeridge [1978] 20 SASR 72 at 77.”

7. In determining the often difficult question whether adequate provision has been made, it may be a relevant factor in a particular case that the applicant is a grandchild rather than a child of the testator.  Whether that is so, and if so, what that relevance would be would depend more upon the particular circumstances than the actual relationship of grandchild or child.  For example, an orphaned, young grandchild left without any substantial means of support is likely to be able to satisfy the jurisdictional test whereas an adult child established in a profession may not.  On the other hand an adult child with a mental deficiency is more likely to be able to satisfy the jurisdictional test than a healthy adult grandchild.

Kitson -v- Franks per Parker J para [67].

8. The inadequacy of the provision in the case of grandchild may be limited to her support and advancement in life.  It may not extend to her maintenance or education.

Kitson -v- Franks per Malcolm CJ, para [18] and Parker J para [91].

Mansfield & Ors -v- Mansfield & Anor, [2003] WASC 214 per Barker J at paras [11] to [16].

9. Estrangement is a very relevant consideration but not one which is necessarily fatal to a claim by a grandchild.

Wall -v- Crane & Ors [2009] SASC 382 per White J paras [118] and [124].

1. Courts will often find in inheritance family provisions claims that a grandchild of the testator has not been left without adequate provision.  That is in part because the parents of the grandchild can be expected to provide the necessary support and in part because of the relative remoteness of the relationship between the grandchild and the deceased.

In Re: Wright, Wallace –v- Drinkwater [1954] NZ LR 630;

Re: Houghton [1976] 1 NZ LR 251;

Wall -v- Crane & Ors per White J para [133].

1. However, in particular circumstances the blood relationship can give rise to a valid moral claim by a grandchild on the bounty of the deceased.  That moral claim may be less than that of the deceased’s own children but it may nevertheless be a valid moral claim.

In re Izard, Hunt -v- Castle [1954] NZ LR 234 at 237;

In The Estate of Puckeridge [1978] 20 SASR 72 at 77-8;

Wall -v- Crane per White J para [134]. 

2. In Wall -v- Crane the Trial Judge upheld a claim where the grandchild was three years old, living in circumstances that could be fairly described as impecunious with no foreseeable prospect of improvement and the Court ordered a pecuniary legacy in favour of that grandchild.
3. In MacEwan Shaw -v- Shaw [2003] 11 VR 95, Dodds‑Streeton J. considered the authorities dealing with the basis upon which a grandchild may make an application for provision out of the estate of a grandparent, concluding where children are in the primary care of their own parents, who are capable of fulfilling their basic needs, prevailing community standards would not, in the absence of some special factor or unusual circumstance impose on a grandparent a responsibility to provide.

Day & Raudino [2009] VSC 463 per Kaye J. para [18].

4. In Petrucci –v- Fields [2004] VSC 425, [64] Mandie J. observed:

“Grandchildren can neither be ruled in nor ruled out, until all relevant facts are examined.  In such a case the test ultimately is whether the wise and just testator would have thought it his moral duty to make any, and if so what, provision in favour of grandchildren.”

Day & Raudino [2009] VSC 463 per Kaye J. para [119].

5. The nature and extent of the contact between the claimant grandchild and the deceased is a relevant consideration to whether and if so what provision the Court should make.

McCarthy –v- Dorney [2007] NSW SC 742 per McLaughlin AJ, paras [64] to [65].

6. In Re: Fulop Deceased (1987) NSW LR 679 McLelland J. indicated grandchildren are not generally regarded as the natural objects of testamentary recognition by a deceased.

Bishop -v- White [2006] NSW SC 354 per Windeyer J para [15].

McCarthy –v- Dorney [2007] NSW SC 742 per McLaughlin AJ para [65].

7. Even if a grandchild does have a legitimate claim for provision because the deceased had some moral obligation to make provision for maintenance and advancement, the fact that there are factors which warrant the making of an application does not necessarily mean that an order would be made.

Dikhuijs (formerly Coney) -v- Barclay [1988] 13 NSWLR;

Bishop -v- White per Windeyer J para [15].

8. Extravagant claims for provision by an adult grandchild for separate housing, holidays, motor vehicles and the like cannot be justified and there is no obligation on the deceased to provide for such matters. The estate at death was about1.16m and at the hearing was $706,000.

Bishop -v- White per Windeyer J para [16].