Media reports suggest that former Prime Minister Bob Hawkes’ estate may be the subject of a Family Provision Claim. Mr Hawke allegedly left approximately $750,000 to each of his biological children, and the remainder of his estate to his second wife, Blanche d’Alpuget. See the original media report here.
This real-life example shows the complexities of drafting wills, and providing for your family in today’s environment where blended families, step children and second/third marriages are the norm.
Who Can Claim?
In South Australia, under the Inheritance (Family Provision) Act 1972 the following persons can made a claim on a deceased estate:
- A spouse of the deceased;
- A person who has been divorced from the deceased;
- A domestic partner of the deceased – A ‘domestic partner’ is someone who was in a registered relationship with the deceased under the Relationships Register Act 2016(SA) at the date of death or some earlier date or someone declared to have been a domestic partner of the deceased under the Family Relationships Act 1975 (SA) at the date of death or some earlier date. For more information about what is required to obtain a declaration that you were a domestic partner of your deceased de facto, please contact our office.
- A child of the deceased;
- A child of the spouse/domestic partner of the deceased;
- A grandchild of the deceased;
- A parent of the deceased; or,
- A sibling of the deceased.
The application must be made within six months of the grant of probate or letters of administration, although the court may give an extension of time if the estate has not been completely administered.
Generally, an application must be made within six months of the grant of probate or letters of administration
What is the Basis of a Claim?
Not all people entitled to apply under the Act will obtain a re-allocation order. The test applied by the court is whether the deceased failed to provide adequately for the applicant’s proper maintenance, education or advancement in life.
A challenge will not succeed on the ground that the will was unfair or unjust in its distribution, when in fact the will does provide adequately for the applicant’s maintenance.
Over the years, courts have created certain guidelines as to what is adequate provision for proper maintenance. The main standard is that the court must put itself in the position of the deceased and consider the case as a “wise and just”, rather than a “fond and foolish”, spouse or parent. Some of the important considerations are:
- the size of the estate
- the age, health and financial position of the applicant. It is necessary for the applicant to prove that she or he is in financial need, or that there is some other special reason why provision should be made for her or him. For example, an applicant in a good financial position might still succeed if it is shown that the deceased was able to build her or his estate through the substantial efforts of the applicant.
- the closeness of the relationship between the applicant and the deceased.
Real Life Example
A case concerning adult children
Broadhead v Prescott  SASC 34
The deceased, a widower at the time of his death, passed away on 11 November 2011 leaving behind six (6) adult children.
The deceased’s estate was valued at $333,423.81.
The deceased and his wife emigrated from the United Kingdom in 1973. At the time, four of their children were young adults who had employment in the UK and remained there. Two of the children were young teenagers and moved with their parents to Australia.
The deceased left the entirety of his estate to the two daughters in Australia, citing the lack of contact and relationship with the other four children as the reason for their exclusion. This was expressed in his will.
Three out of the four excluded children sought provision out of the estate.
The Court found that there was sufficient evidence that the deceased had maintained a relationship with the applicants, leading to the words of the will relating to their exclusion being disregarded.
The personal circumstances of each of the children at the time of the application were:
- Child 1 was 63 years old and single. He continued to reside in the UK and suffered a number of physical ailments such as diabetes and Reynaud’s disease. He was unable to work, receiving a disability pension (and other benefits from the UK government) amounting to £1,000 per month. He had no significant savings or assets.
- Child 2 was 61 years old, working part time and in a de facto relationship. She and her partner owned a house valued at £110,000 with a mortgage of £60,000. Her income was £700 per month and her partner was on an old age pension. Apart from the house she had no significant assets.
- Child 3 was 61 years old and single. He came to Australia in 1987 to visit the deceased on a tourist visa. He overstayed the visa and remained in Australia until 2008 when he was deported. He suffered from Parkinson’s disease and was no longer able to work. He was in receipt of a disability pension from the UK government. He had no assets or savings of note.
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Find out if you can challenge a relative’s will
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The above example demonstrates a failing on the part of the deceased to adequately consider the consequences of the will making decision. Objectively, it is not surprising that a family provision claim was made in these cases. Legal costs in these matters will generally be at the expense of the estate thereby reducing the residual value of the estate.
What the cases now show is that courts are increasingly prepared to interfere with the wishes of a deceased and re allocate assets.
There are, therefore, good reasons for seeking advice on these matters in an attempt to protect your estate assets and the future harmony of your family.
Herman Bersee – Firm Principal
(08) 8725 6969