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Family Provision Claims by Adult Children

Family Provision Claims by Adult Children


by Andrew Verspaandonk, Barrister

Released May 2007

About This Program

Testator family maintenance claims, or “Family Claims”, have been much affected by changes in Australian statutory regimes and the attitudes and approaches of courts.

This program examines relevant developments and the current state of play, including:

  • more equal treatment of adult sons and daughters;

  • less emphasis on financial need as a necessary condition of a successful claim, such that wealth is not an insuperable hurdle to a successful claim;

  • the effect of family disharmony or estrangement on Family Claims;

  • trends in claims by step children; and

  • cases that illustrate how Courts are approaching key issues, particularly cases indicating the High Court’s attitude to schemes designed to avoid the operation of Family Claims legislation.

KIRBY J: Does his Honour go into the issue that I raised at the outset, that is to say whether we are not just picking up and assuming that all that law remains the same despite the changing social base?

MR TILMOUTH: As I understand it, no, if the Court pleases.

KIRBY J: Well, that is always the problem with lawyers and it is the duty of this Court, I think, to keep the law alive. 1

Family Provision Claims

The classical formulation of the principle underlying these claims was recently recounted in the High Court:

Perhaps the most frequently cited statement of basic principle underlying this legislation is that of Salmond J in In re Allen (deceased), Allen v Manchester :

The provision which the Court may properly make in default of testamentary provision is that which a just and wise father would have thought it his moral duty to make in the interests of his widow and children had he been fully aware of all the relevant circumstances.

That statement was adopted by the Privy Council in a New South Wales appeal in Bosch v Perpetual Trustee Co. Bosch, in turn, has been followed and applied in this Court many times. In McCosker v McCosker, Dixon CJ and Williams J, referring to what is sometimes called the primary or jurisdictional question, said:

The question is whether, in all the circumstances of the case, it can be said that the respondent has been left by the testator without adequate provision for his proper maintenance, education and advancement in life. As the Privy Council said in Bosch v Perpetual Trustee Co (Ltd) the word 'proper' in this collocation of words is of considerable importance. It means 'proper' in all the circumstances of the case, so that the question whether a widow or child of a testator has been left without adequate provision for his or her proper maintenance, education or advancement in life must be considered in the light of all the competing claims upon the bounty of the testator and their relative urgency, the standard of living his family enjoyed in his lifetime, in the case of a child his or her need of education or of assistance in some chosen occupation and the testator's ability to meet such claims having regard to the size of his fortune. If the court considers that there has been a breach by a testator of his duty as a wise and just husband or father to make adequate provision for the proper maintenance education or advancement in life of the applicant, having regard to all these circumstances, the court has jurisdiction to remedy the breach and for that purpose to modify the testator's testamentary dispositions to the necessary extent. 2

Although the claimants referred to were widows and children, the class has now been widened significantly to include (in different States), partners, step-children, dependents, grandchildren and in Victoria, “a person for whom the deceased had responsibility to make provision”. 3

The need for the applicant to establish a moral claim to further provision has been the matter of judicial debate but has clearly been endorsed as a useful perspective from which to assess the statutory criteria;

In explaining the purpose of testator's family maintenance legislation, and making the value judgments required by the legislation, courts have found considerations of moral claims and moral duty to be valuable currency. It remains of value, and should not be discarded. Such considerations have a proper place in the exposition of the legislative purpose, and in the understanding and application of the statutory text. They are useful as a guide to the meaning of the statute. They are not meant to be a substitute for the text. They connect the general but value-laden language of the statute to the community standards which give it practical meaning. In some respects, those standards change and develop over time. There is no reason to deny to them the description "moral". As McLachlin J pointed out in the Supreme Court of Canada, that is the way in which courts have traditionally described them. Attempts to misapply judicial authority, whatever form they take, can be identified and resisted. There is no occasion to reject the insights contained in such authority. 4

The legislation does not permit a wholesale re-distribution of the estate:

"The Testator's Family Maintenance Act is legislation for remedying, within such limits as a wide discretion would set, breaches of a testator's moral duty to make adequate provision for the proper maintenance of his family - not for the making of what may appear to the court to be a fair distribution of a deceased person's estate among the members of his family. As has been said in another context, 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 a 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." 5

The limitation is founded on freedom of testation deriving from the concept of private property:

"[I]t is one of the freedoms that shape our society, and an important human right, that a person should be free to dispose of his or her property as he or she thinks fit. Rights and freedoms must of course be exercised and enjoyed conformably with the rights and freedoms of others, but there is no equity, as it were, to interfere with a testator's dispositions unless he or she has abused that right. To do so is to assume a power to take property from the intended object of the testator's bounty and give it to someone else. In conferring a discretion in the wide terms found in s.91, the legislature intended it to be exercised in a principled way. 6

Financial need has always held significant in such claims. However, need is a relative concept and may be found even where the applicant is not destitute. 7

This issue has recently been further considered in the High Court. In Vigolo, a claim was made by an adult son who had worked for 20 years on his father’s farm. The stated inducement was that the son would receive the farm upon the father’s death. However, some years prior to the father’s death, there was a dispute between father and son, resolved by a Deed of Settlement entered into at arms length and on commercial terms. 8At the time of the father’s death, no provision had been made for the son who sought further provision under the relevant statute.

The claim was not put on the basis of the applicant’s need because he was quite well off and in a much better financial position than his siblings. However the claim was put purely on the basis that the deceased had a moral obligation to the applicant bearing in mind his prior work in the family farming enterprise and promises (relating to the farm) made to him during the currency of that enterprise.

In essence, in the judgment of Gleeson CJ and the joint judgment of Heydon and Callinan JJ, the secure financial position of the applicant was not determinative of the issue. Gleeson CJ noted that the fact that the applicant had been financially advantaged by his father (by being included in the farming enterprise) and had been adequately compensated for his extensive efforts upon dissolution of that enterprise was “significant”. 9Heydon and Callinan JJ held that adequacy of provision was not to be assessed simply in light of whether the applicant had the independent means to live comfortably, but was to be assessed in all of the circumstances, including promises of the kind made to the applicant and the circumstances in which those promises were made. 10 Gummow and Hayne JJ also appeared to consider the promises significant. 11

Taken as a whole, the judgment appears to contemplate that applicants may succeed on a claim even if they have more than sufficient resources of their own, on the basis that all relevant factors must be balanced to arrive at a conclusion as to whether “adequate” provision has been made. In short, it is again confirmed that significant wealth will not be an insuperable hurdle to a successful claim.

Claims by adult children

Traditionally, adult children, and particularly sons, although able to make claims, have had to show a special need or special claim in order to succeed in an application:

No special principle is to be applied in the case of an adult son. But the approach of the court must be different. In the case of a widow or an infant child, the court is dealing with one who is prima facie dependent on the testator and prima facie has a claim to be maintained and supported. But an adult son is, I think, prima facie able to "maintain and support" himself, and some special need or some special claim must, generally speaking, be shown to justify intervention by the court under the Act …

The discretion given by the Act is obviously intended to be very wide. The size of the estate is always important, and there will commonly be needs and claims other than those of the applicant to be considered. But it is always, I think, primarily a matter of estimating need and moral claim. Often need and moral claim will coexist. Sometimes there may be a strong moral claim on the testator's consideration but no need. In such cases I think that, as a general rule, the court should not interfere, though no rigid rule can be laid down. Sometimes the moral claim may be slight, and yet the need so dire that the court will hold that a wise and just testator would have made some provision, or, in other words, that wisdom and justice can connote a degree of generosity without degenerating into fondness and foolishness.

I think that the case of an adult daughter, even in these days when it is quite normal for a single adult woman to be self-supporting, is not to be viewed in quite the same light as that of an adult son. In the case of an adult son, who has received an education and is well able to earn his living, the father's moral obligation can probably in most cases be regarded as discharged, and a wise and just testator may well feel himself at liberty … “to do what he likes with his own”. 12

Note first the distinction between adult sons and adult daughters and second, the heavy focus on financial need (described in terms of inability to support oneself), without which, a moral claim will not be sufficient to justify further provision. It is submitted that each of those restrictions 13 has effectively disappeared. The demise of the distinction between adult sons and daughters was foreseen by Hoare J in 1972:

Claims by an adult daughter who is not trained for a particular calling have been regarded more favourably than claims by able-bodied sons. With change in our social conditions and with more women engaged in employment some of the distinctions between adult daughters and adult sons will undoubtedly diminish. There seems no reason in principle why an adult daughter in good health, in a settled occupation, earning as much as an adult son and with similar economic prospects should be treated more favourably than a son. 14

The notion of a special need or claim was discussed by the High Court in the following terms:

In some cases a special claim may be found to exist because the applicant has contributed to building up the testator's estate or has helped him in other ways. In other cases a son who has done nothing for his parents may have a special need. This may be because he suffers from some physical or mental infirmity, but it is not necessary for an adult son to show that his earning powers have been impaired by some disability before he can establish a special need for maintenance or support. He may have suffered a financial disaster; he may be unable to obtain employment; he may have a number of dependents who rely on him for support which he cannot adequately provide from his own resources. There are no rigid rules; the question whether adequate provision has been made for the proper maintenance and support of the adult son must depend on all the circumstances –– that is, on all the facts that existed at the date of the death of the testator, whether the testator knew of them or not, and all the eventualities that might at that date reasonably have been foreseen by a testator who knew the facts. 15

In other States, but not all States, the principle requiring a special need or claim was (in effect) departed from in the 1980s. 16 It has now been surpassed in Victoria largely as the result of the changes to the statutory regime effected by the Wills Act 1997 (Vic.), which amended Part IV of the Administration and Probate Act 1958 (Vic.):

In the provisions of s 91 of the Act, no distinction is made between an Applicant who is a son or daughter or who is male or female. The facts that the applicant is an adult male, does not put him in a special class, nor in my view, should such an applicant be considered “prima facie able to maintain and support himself”. Nor should an applicant who is an adult male, need to establish that he has a “special claim” before the Court, in exercise of its discretion, may order that provision be made from the estate of a Deceased for such applicant. The Court on such an application as this is required, when dealing with the issues as identified in s [91] (a)–(d) , to have regard to the matters set out in sub-sections (e) to (p) … However, the Court is not required beyond that to have regard to the sex of the applicant or distinguish between a child of a deceased who is an applicant by reason of the gender of that child. 17

However, an adult child will necessarily be in a different position to an infant child in the context of a maintenance claim. In the normal course, the obligation to maintain a child will diminish over time as the child grows and makes their own way in the world. As it has been observed, age is a relevant factor and ordinarily, an adult of any sex is “..necessarily in a different position from that of infants”. 18

However, it is probably now the case that current community standards would require that all things being equal, children will share in their parents’ estates to at least some extent and their sex will not be a material factor.

Estrangement or distressing conduct

One factor that usually motivates family members to defend such claims is the pain, shame or distress suffered by the deceased at the hands of the claimant. In some cases, this can manifest itself in distressed or troubled relations, in other cases, total estrangement for a significant period of time. These things elicit visceral reactions and completely un-commercial responses. 

At the lower end of the spectrum, the law demonstrates that family disharmony arising out of legitimate individual choices or even unfortunate and regrettable personality clashes is inevitable and essentially insignificant for the purposes of assessing a claim:

Differences of outlook between different generations is not exceptional, it is the general rule so some friction between parent and child or disappointment in a parent's hopes and expectations concerning his child will be accepted by the wise parent as almost inevitable. 19

Parents and children misbehave towards each other, and the older they get the more they seem to do it. But absent extraordinary circumstances, it does not mean that the parents love the children any less or that their duties and responsibilities towards the children are in any way diminished, and usually it does not mean that the children are any less deserving of the parents' love and support. 20

In Herszlikowicz v Czarny 21 the plaintiff was a doctor who had committed unprofessional and criminal acts, bringing shame upon his family. He was clearly the author of his own misfortune. The plaintiff’s conduct (and its effect upon his family including the testator) were held by Hargrave J to be one factor, but only one factor, in the inquiry. He received substantial provision, sufficient to pay out his Part X arrangement, buy him a home and provide him with a nest egg. It was placed in a protective trust, at his request.

At the other end of the spectrum, in cases where there has been more  substantial estrangement between the deceased and a claimant, the approach of the Court is as follows:

It is often impossible to work out whether the degree of separation between parent and child at the date of the parent's death is solely the fault of either or whether it has come about by factors too strong for either to control or somewhere in between.

The important matter is not fault, but, whether in all the circumstances it would be expected by the community that the testator would have to make a greater benefaction than he in fact did to constitute proper or adequate provision for the plaintiff.

Accordingly, I reject the approach that all an applicant under this Act has to do is to prove that he or she is an eligible person and that he or she reasonably needs more financial assistance. The cases show that there must be a full investigation into all the facts and circumstances of the matter to see whether the community would expect that a person in the plight of this testator ought to have made provision or further provision for the applicant. ... 22

However, despite the statement of principle, estrangement is by and large an uncertain line of defence.

(a)    The cases show that on many occasions, such conduct will not defeat a claim, but may serve to reduce it. That of course has an immediate effect on the estate’s position through the imposition of the usual costs orders. Some examples follow.

Hogan-v-Clarke 23 was a case in which the plaintiff daughter had been estranged from her mother for about 30 years. She had not attended the funeral of her father and later her brother and did not thereafter console her mother. She did not visit her mother during her last illness.  Her only surviving sibling was the defendant her sister who took virtually the entire $300,000 estate. The Judge found that the plaintiff had spent virtually no time in seeking to preserve or repair the relationship and that the relationship was “so ruptured” that applying the prevailing community standards test, the application had to be dismissed.

(b)    Penn-v-Richards 24 involved a claim by the only child of the deceased. The estate was worth about $500,000 of which the plaintiff received a legacy of $20,000 and the remainder passed to the deceased’s sister and her children. However, the plaintiff had been rejected by the deceased who “didn’t want to know her” 25The deceased had given relatively little financial support to the plaintiff during her lifetime and at relevant times, had been ill and financially vulnerable. Ashley J found that although there was virtually no contact, the plaintiff was not the author of that situation and awarded her about half of the estate, sufficient to provide her with a house and a nest egg.

(c)    McQuhae-v-Abel 26 concerned a daughter’s claim in a relatively small estate of around $265,000 which otherwise went to her elder sister and four grandchildren. The Will recorded that the plaintiff had not acknowledged her parents for the last 14 years and had sought to prevent them seeing her children. The plaintiff had been close to her parents and had assisted in renovating their home. However, in 1987, on doctor’s orders, the plaintiff and her husband moved away from her parents’ locality and it seems that her mother (unlike her father) never forgave her, the Master holding that this was quite irrational. He held that “in large measure, it must be the responsibility of the deceased for the initial break in the relationship with her daughter.” However, he found that as there had been no attempt at contact at all by either in the last 11 years the plaintiff was to blame to some extent.  The plaintiff and her husband were in a fairly marginal financial position and the plaintiff’s earning capacity was impaired by her need to care for children with special needs. She was awarded $65,000 to pay off her mortgage.

(d)    In White-v-White27, the deceased was survived by the plaintiff who was his 61 year old daughter, his son (who did not participate in the litigation having previously obtained a conditional settlement of $130,000), the first defendant who was his second wife and the second defendant who was his step-daughter. The entire estate went to the first defendant. She had received the family home and other assets by survivorship, leaving $570,000 in the estate after costs and the conditional settlement. The plaintiff was without dependents and had made her own way in life financially, owned her own home and would have around $250,000 upon retirement. However, she had a congenital deformity affecting her hands. The relationship between the plaintiff and her father had broken down following his remarriage, when after an argument he refused to speak to her for a time. Contact was re-established but she had last seen him 11 years prior to his death. The Master ruled that:

[The plaintiff] did endeavour to maintain contact but the deceased rebuffed her, probably wrongly. However, one factor that has to be noted is that there was in fact very little contact over the later years, no doubt as a result of the deceased’s perceptions. This was an unfortunate consequence and has to be borne in mind when assessing the extent of the provision to be made for the plaintiff. 28

Noting that the widow was well provided for and that the plaintiff had immediate needs of about $45,000, she was awarded $200,000.

(e)    Mulhall-v-Permanent Trustee 29 was a case in which the deceased was survived by his long standing de facto wife and the plaintiff who was his daughter. The estate was about $540,000 and had been left to the de facto wife entirely. The deceased had made his will in 1996 and stated that the plaintiff had been excluded as he had not seen her since 1948 and that she would have been given a “good start to life” by reason of a property division he had made with the plaintiff’s mother in 1967. However, it was established that the deceased’s history was just wrong, the plaintiff having contacted her father over much of the previous 48 years and save for a couple of periods of years during which she didn’t see him, one of which was spent trying to find his nursing home. The plaintiff and the de facto were both in a modest financial position with the plaintiff leading a very frugal existence.  The question was what was appropriate given the limited contact? The learned Master found that the deceased had harboured unfounded suspicions about the paternity of the plaintiff, that little reliance could be placed on the deceased’s statement of reasons regarding contact between them and that the evidence made it plain that the deceased never tried to contact the plaintiff but that it was the other way around. 30In awarding $180,000 the Master ruled:

When one stands back and looks at it, it seems to me that the deceased rejected contact from his daughter for unfounded reasons and the plaintiff, justifiably, did not involve him in her life. It is not, in my view, a situation where the plaintiff abandoned her father without just cause. The unfortunate thing is that the plaintiff and the deceased were deprived of that filial contact which can be so rewarding to both. In the circumstances, it is appropriate to make provision for the plaintiff. 31

(f)    Rowley-v-Bouwmeester 32 concerned a daughter’s claim against her father’s estate. Her father was survived by his second wife and her daughter, the residuary beneficiaries. The plaintiff’s brother also survived but didn’t participate. The estate was quite large, $4.7M, and was shared between the second wife and the step daughter, save for a small bequest to another family member. Blow J held that given the long and close relationship the deceased had with these beneficiaries, substantial provision was appropriate. The plaintiff lived at home to the age of 20, assisting her parents in the running of their motel business. Her relationship with her parents was fine until she met a guest at the family motel. She formed a relationship with him and left to live with him in Melbourne , leaving him to break the news to her parents. Their reaction was extreme. Her father traveled to Melbourne , accosted and assaulted the plaintiff and threatened to kill her lover. Her mother wrote a long and hostile letter to her. Thereafter, she married Rowley and contact with her parents and then her father, was intermittent, being both initiated and rebuffed by each of them at various times. Further:

  • the plaintiff lied to her father in order to induce him to give her money;

  • the plaintiff accused her father of sexually assaulting her;

  • the plaintiff returned gifts and invitations to her father;

  • The plaintiff visited Hobart shortly before her father’s death but did not contact him (prompting him to exclude her from his Will); and

  • The plaintiff found out about his death by means of writing to the Registrar of Births Deaths and Marriages.

The Judge held that the deceased had been primarily responsible for the estrangement, but that the lack of contact and hostility shown by the plaintiff operated to reduce the strength of her moral claim substantially. However, she was in some need as she was in Family Court litigation over her own matrimonial pool of about $800,000 and was supporting 4 young children on Centrelink benefits. She was awarded a legacy “far smaller” than the provision to the main beneficiaries.

(g)    Dolman-v-Palmer 33 concerned a claim by the deceased’s daughter by his first marriage. The deceased’s estate was valued at about $4M and he had left it largely to his son and other family members. The plaintiff was his only other child.  The plaintiff was expressly excluded as having had nothing to do with the deceased until very recently and otherwise showing no interest in his welfare even though she was aware of his illness. The deceased had separated from the plaintiff’s mother when the plaintiff was 13 years old, twenty years before the claim. The mother had received a home and property to the value of around $1.5M at that time. The plaintiff had remained with her mother and had apparently thrown her lot in with her. The deceased sent birthday and other cards to the first plaintiff. A few years later she wrote an “angry” letter to him and asked him to stop. He responded in detail with a letter in which he left open the option of further contact. There was no further contact between them until the time of death even though in the intervening years, the plaintiff had continued to visit a neighbor of her father’s, without ever visiting him. When the plaintiff learned that her father had two weeks to live she didn’t visit him. She subsequently relented and visited him once. She maintained her rejection of her father until his death and this was found to be a deliberate decision on her part continuing well into adulthood. The plaintiff was able to provide for herself although she had no significant assets. The claim failed.

(h)    Brinkkotter-v-Pelling 34 concerned a claim by the eldest son of a chicken farming family. The deceased father was survived by his 5 children, including the plaintiff. His estate was worth about $1.2M and the only other son had received his farm. The plaintiff was found to have worked for un-commercial wages for about 20 years (although he alone received other significant benefits from the partnership) before a dispute with his father and brother led him to leave the family partnership. The terms of his leaving included the forgiveness of his loan account and the continued use as security by the partnership of land jointly owned by the plaintiff and his brother for a number of years thereafter. The rupture was bitter and the plaintiff was never reconciled to his father, or other family members. The Judge found that the estrangement was contributed to by both sides. In the Will, he received a legacy of shares worth $5,000. Despite having substantial wealth himself, he was awarded further provision of $75,000.

(i)    Horsburgh-v-White 35 concerned a claim by a daughter who had been completely disinherited by her parents, the father being the last to die. Her brothers had been well provided for during life, having received substantial wealth through the family business. The estate was worth about $400,000 and was left to the plaintiff’s 3 children equally. A Will of the deceased made in 1995 had left the estate to the plaintiff on the basis that her brothers had been provided for with the family business and that she had received very little assistance. However, upon her separation from her husband in 1996, a number of further wills were made, the last of which left her nothing. She received no further assistance from her parents from the time of the 1995 Will. The plaintiff had a troubled relationship with her parents from the time of her separation, which was quite traumatic for her children and also for them. She was also found to have taken financial advantage of her parents and her children and to have been dishonest and irresponsible. However, the plaintiff and her new partner were completely destitute, save that her partner had some earning capacity. This ultimately is what tipped the balance of the case in her favour. She was given an equal share in the residue of the estate with her children, in accordance with the penultimate Will.

(j)    Vincent-v-Rae 36 concerned a dispute between two of the deceased mother’s four daughters, one of whom had been excluded from the estate and the other who had worked and inherited the farm of the deceased. One other daughter had received an inter-vivos transfer of part of the farm and the other daughter had gone her own way and not made a claim. The plaintiff had been estranged from her mother for about 8 years at the time the Will was made (the Will explained the exclusion on this basis) and for 20 years at the time of death. The plaintiff had given up an opportunity to become a nurse in order to remain on the farm and help her father run it. She ran the farm on her own for about 5 years after his death, until she was married. Her duties were “onerous”. She was never paid. After she was married, the defendant really took over the running of the farm. In 1984, the plaintiff and the deceased had a falling out, over the death of the plaintiff’s old horse which had remained on the farm. Contact was very sparse after this, with overtures by the deceased being left hanging by the plaintiff (although after the Will had been made, the plaintiff had attempted to restore the relationship to some degree). The Judge refused to attribute the entire blame to the plaintiff, although she did acknowledge that her mother had tried to re-open contact before the Will was made. The defendant had modest assets. The plaintiff and her husband owned their own farm worth around $1M, but were income poor with several children. The plaintiff was awarded provision by way of a legacy of $50,000.

(k)    In Curran-v-Duncan 37 the deceased died leaving 3 daughters. She made provision for the eldest daughter and her husband. The two younger daughters were excluded. One plaintiff had been estranged from her mother for about 5 years, inexplicably, because the Judge found that she had shown no hostility to her mother. That plaintiff later stayed with and cared for the deceased in her last illness and continually attempted to maintain a relationship with the deceased. 38 The other plaintiff had incurred the deceased’s displeasure decades before by leaving home to live with a man. She subsequently returned home but had a falling out with her mother, who the Judge found could be “determined and unforgiving” and never spoke to her again for twenty years until death. The Judge found that the deceased displayed an attitude of “determined disapproval”, illustrated by the fact that she steadfastly excluded the plaintiffs from her Will in the face of legal advice. In light of that fact, the Judge was critical of the failure to explain that decision in the Will. 39In short, the Judge held that the estrangements were contributed to significantly by the deceased.  40The defendants were in no financial need. The plaintiffs were in some financial need. The estate was worth just over $200,000 net. They received provision of 30% each with the balance passing to the defendant.

The judicial touchstone of current community standards, an exercise in value judgment, places the professional advisor in an invidious position. In these circumstances, it is difficult to advise categorically as to liability and especially quantum. However, it does appear that the Courts are most willing to infer that current community standards expect that in the normal course, adult children will benefit from their parents’ estates. Even when distance and bitterness distort or even rupture the relationship to all appearances, the expectation is not entirely removed.

Other claims

The widening of the law in Victoria has seen the following claims brought:

  1. a successful claim by a younger brother, treated for all purposes as a son of his elder sister. Note that there was no real special need or claim shown in that case; 41

  2. an unsuccessful claim by a sister, in circumstances where there was no parent child relationship but there had been a devise of family property originally intended to pass to her but which had been adeemed; 42

  3. an unsuccessful claim by a natural son, who had been adopted out by the deceased at the age of 4 to another couple. 43The plaintiff and the deceased continued to have contact from time to time, but the relationship was described by the Judge in the following terms; “Although there was contact from time to time had by the plaintiff with the deceased and this had as its foundation the fact that the deceased was the plaintiff's natural mother, there existed no close relationship between them”. 44The deceased had subsequently had another child who was the competing beneficiary to the claim. The plaintiff failed even though he was in significant need and was ill.

  4. a successful claim by a niece by marriage, treated for all purposes as a daughter of the deceased (where the applicant was in obvious financial need); 45

  5. a successful claim by a daughter in law and her children (grandchildren of the deceased) on the basis that the husband and father had predeceased the deceased whereupon the deceased re-made his will in favour of his surviving children; 46

  6. an unsuccessful claim by a former homosexual lover of the deceased (who had originally been abused by the deceased as a child but had later formed a consensual relationship with him). 47

  7. successful claims by step-children, some treated as children, some not, discussed below.

Step children in Victoria

In Victoria , there are now two bases upon which step children may be able to establish a claim for provision or further provision:

  • that the step parent was essentially in loco parentis to the claimant;

  • that even where the step parent was not in loco parentis, the step parent’s estate had been enlarged by the natural parent’s estate.

The second proposition (first applied in other jurisdictions) 48has been enunciated by Nettle J (as he then was) in McKenzie-v-Topp 49 in the following terms:

For just as community attitudes are the touchstone of adequate provision, so too are they the criterion of responsibility to provide. Other things being equal, right thinking members of society are likely to accept that the needs of the widow of a second marriage should rank in priority ahead of the claims of the children of a first marriage; although of course it is always a question of fact. But equally, upon the death of the widow, and as it were in the event of a surplus, most would surely say that the children of the first marriage should rank for their fair share. For once the widow is gone, and therefore no longer in need of provision, her needs no longer warrant that the children rank behind her or thus her chosen successors. 50

That said, the point of principle for present purposes is one of modest proportions. If children of a first marriage have stood aside in order that their father might make adequate provision for the widow of a second marriage, and upon her death there are assets in her estate, the amount left by their father to the widow maybe relevant to the question of whether she is responsible to provide for them. 51

Note that McKenzie dealt with a situation in which the claimant step-son had been a part of the household of the deceased from a very young age and she had been the only mother figure that he ever knew. 52  The contribution to the step-mother’s estate made by the natural father served as a further relevant consideration in whether the step-mother had a responsibility to provide for the claimant.

In later cases, that principle has been applied more generously. In James-v-Day, 53 Cummins J made an award of provision to step children despite the fact that the deceased had never been in loco parentis to them. The result was explained as one in which an holistic and historical view was applied, focusing almost entirely on the source of the step parent’s estate, which was the natural parent’s estate. A similarly remote relationship did not prevent the claimant from succeeding on the same basis in Keets-v-Marks. 54In these later cases the natural parent’s contribution to the step parent’s estate, rather than being one factor amongst others, really constituted the whole basis upon which an obligation was found to be owed to the step-children claimants.

In Freeman-v-Jacques 55 the source of the step parent’s estate (being in part, the natural parent’s work during his lifetime and a settlement from his estate after his death) justified the making of provision for two step-children (although not others) as they were in necessitous circumstances. Such provision was made even though they had benefited from their father’s estate already. Note again, that these claimants were step-children “in name only” they having had no relationship with the step-parents and only hostile contact with her.

Contracting out of or evading the statute

It was settled during the Second War that the jurisdiction of the Court conferred under the respective statutes could not be ousted by private agreement. The policy of the statutes was not limited to affecting private individuals exclusively, but had a public aspect as well. 56

However, human nature being what it is, steps are often taken to attempt to avoid the impact of the statute.

In general, an order for provision can only be made against the estate of the deceased, with the exception of jurisdictions such as New South Wales which has enacted legislation to bring about an effective “claw back” of assets in certain circumstances (Notional Estate provisions).

This means that in general, the following assets will not form part of the estate (subject to assuming capacity and there being no transaction which Equity or Notional Estate provisions could impeach):

  • jointly owned assets will escape the net, vesting in the survivor;

  • death benefits subject to a valid nomination (Binding Death Nomination in relation to Superannuation death benefits);

  • assets held by a discretionary trust;

  • assets gifted inter-vivos.

However, a danger remains even where there are no Notional Estate provisions. That danger is that a transaction can be “undone”, on equitable principles, even after the death of the deceased. This is what occurred in the case of Bridgewater-v-Leahy. 57

The events which occurred would probably be familiar to many professionals in the context of asset planning and protection advice.

The deceased, Bill York had a farm. He owned some of it solely and other portions with his brother Sam. They had inherited some of the farm from their father and ran their farming enterprise together. Bill also had a wife and four daughters. Bill had no son. However, Sam’s son Neil worked the farm in partnership with his father Sam and his uncle Bill. Bill and Neil appear to have had a relationship of mutual trust and admiration.

In 1985, Bill made his last Will. He left:

  • To his wife, his house, car and cash ($150,000);

  • To his four daughters, the residue of his estate (including his farm and partnership interest), but subject to one very important qualification;

  • To Neil, an option to purchase his farm and partnership interest for the fixed sum of $200,000.

The value of his farm and partnership interest was nearly $700,000. Therefore, the effect of the Will was to give Neil around $500,000 at the expense of the daughters.

When the Will was made, Bill used a solicitor’s firm he had used before. He made the Will on his own initiative and was not accompanied by Neil when giving instructions or executing the Will. It was clear that he wished to benefit Neil substantially and it was found that Neil was the “son he always wanted but never had”.

A couple of years later, Neil sold some land. Bill had encouraged him to do so. Bill had expressed a wish that Neil would sell that land and with the proceeds of sale, buy Bill out of his own pastoral interests. Neil duly asked Bill to sell him part of the farm for the sum of $150,000, which was the amount he had available from his own sale. (Bear in mind the land to be purchased was only part of the land which he would have the option over on Bill’s death).

Bill agreed to sell. Sam also co-owned some of the land and agreed to transfer it to Neil for nothing. Even though the land to be transferred was only part of the land subject to the option, the land to be transferred had appreciated since the Will and was now of itself worth nearly $700,000.

The same solicitors prepared the necessary documents. The solicitor unilaterally structured the transaction as a contract of sale for full value and a forgiveness of debt for the difference between contract value and the reduced price (which was in fact the price that had been agreed). A doctor’s certificate as to Bill’s mental capacity was obtained to the effect that he knew what he was doing. (Bear in mind that he was very old, had recently lost his driving licence and his condition “waxed and waned”. Also bear in mind that his wife, who ought to have known his condition more intimately and precisely than anybody else, did not give evidence).

The solicitor acted for Bill, Sam and Neil and did not suggest that Bill obtained independent legal advice.

A few months later, one of Bill’s daughters took him in to see the solicitor. She said that he had been too generous to Neil in his Will. At that time, she was told of the sale of the land for $150,000. The solicitor’s notes made it clear that Bill defended his decision to sell the land to Neil, that he knew that he had sold at an undervalue and that he said that Neil was “entitled to it” having stuck with him “through thick and thin”. He also referred to provision that he had made for his daughters during his lifetime.

Bill died and Neil, who had already purchased most of the land governed by the option in the Will, then exercised his option to purchase the balance for the stipulated fixed sum of $200,000.

Therefore, Neil had committed to 2 transactions (the first in 2 parts):

  • a purchase of some of the option land for full value;

  • a forgiveness of debt in relation to the value over $150,000;

        (“the lifetime transaction”);

  • upon Bill’s death, a purchase of the rest of the option land for $200,000, (“the option transaction”).

Of course Neil could just have waited until Bill died, exercised his option to purchase under the Will and obtained all of the land for $200,000. The effect of the lifetime transaction was that he had taken some of the land early and paid an extra $150,000 for the privilege.

Stopping here, why didn’t the widow and daughters rely on a claim for further provision?

They had brought one but had let it lapse. This was probably because an order for provision can only operate on the assets forming part of the estate:

  1. If Bill had not sold any land to Neil prior to his death, the whole of Bill’s land would be in his estate upon his death. The daughters were equally entitled to it. The only problem arose because of the option to purchase given to Neil, by which he could take over $700,000 worth of land for $200,000. However, in a claim for further provision, a Court can do more than just award sums of money. It would have been open to the Court to simply remove the option, or more likely, change its terms to bring the price more into conformity with market value.

  2. However, in fact, Bill had sold a large part of his land to Neil before he had died. Accordingly, on the face of it, that land had been removed from the estate, leaving land of a much smaller value. If the option terms were altered to bring the price to market, then the amount payable would still be much smaller, because there was so much less land remaining in the estate.

In short, a large estate had become a smaller estate. The trick was to convert it back into a large estate.

The strategy of the beneficiaries was to undo the lifetime transaction, or parts of it, on the grounds of unconscionability. In essence, the plaintiffs needed to show that Bill was at a disadvantage in the lifetime transaction, Neil knew of it and took advantage of him. 58

However, the plaintiffs had to be careful what they asked for. If the plaintiffs had set aside the whole of the lifetime transaction, they would have been worse off, because the land would fall back into the estate, Neil’s option given under the Will would come into play and he could have bought all of the land for only $200,000.

Therefore, the plaintiffs tried to have their cake and eat it too. They exploited the way in which the solicitor had (with no apparent basis on instructions) structured the transaction. They said that the sale for full value should stand, but the forgiveness of debt should be set aside. In this way, Neil would be required to pay full value for the land bought in the lifetime transaction, plus $200,000 for the land remaining in the estate and the partnership interest, a total of around $950,000. 59Even though the option had been exercised, it would only relate to the remaining land, not the debt that had been forgiven. 60

Gaudron, Gummow and Kirby JJ found for the beneficiaires. Gleeson CJ and Callinan J were in dissent.

Neil had given evidence that he had felt it appropriate enter into the lifetime transaction in effect, to pay more money for the total available land and make it “more equitable” for the daughters. The following comments by the majority are instructive:

It would appear that, by using the phrase "getting more equitable", Neil recognised that the value of the land he would be acquiring and obtaining under the option had risen since 1985 and was continuing to do so. Neil retained the intention to exercise the option with respect to the remaining parcels of land. The price of $150,000 when combined with the option price of $200,000 would be more equitable to Bill's four daughters. On the other hand, the effect of the contemplated inter vivos transaction would be to put beyond recall by Bill the disposition in favour of Neil of his interests in the Wonga Park Fee Simple, the Wonga Park Perpetual Lease Selection and the Risby Land , together valued at $696,811, for a seriously inadequate consideration of $150,000. Neil would retain the option under cl4 of the Will in respect of the other lands for a consideration of $200,000.

Further, the inter vivos transaction would remove from Bill's testamentary estate substantial assets which would otherwise have been available to be brought into account in the formulation of an order in favour of the appellants upon the Family Provision Application. Whilst it was plainly the case that Bill's goal was substantially to benefit his nephew, his scope to do so by testamentary provision was qualified by the possibility of such an order for provision out of his estate being made in favour of his widow and children. 61

The trial Judge had found that Bill had been a capable and willing participant in the lifetime transaction and that had he been referred to another solicitor for independent advice, he would have gone ahead with it regardless of any advice he may have received. However, the majority observed that the issue was the denial of the opportunity to obtain independent advice, not what would have ensued had it been obtained. 62

The majority found that Bill had unfairly been taken advantage of. The relationship between Bill and Neil was found to exhibit a “tendency of the older man to fall in with the wishes of the younger.” 63

"Bill York respected your opinions, didn't he? -- Yes.

And he respected your judgment about matters? -- I would have thought so.

And you knew that, didn't you? -- Yes, I got on very well with Bill.

You knew that Bill York trusted you implicitly, didn't you? -- Yeah, I think he did, yes.

And treated you as though you were his son effectively, didn't he? -- Yes.

And you knew that he was bitterly disappointed that he had never had a son of his own? -- He said he would have liked to have had a son, yes.

And so all the affection he would have given to his own son he gave to you, didn't he? -- Possibly, yes.

You have no doubt about that, do you? -- Not really, no.

In fact, your counsel opened your case to His Honour as saying that you would give evidence that you had a special and close relationship with this man. You haven't said that, but that's an accurate statement, isn't it? -- Yes."

In the context of the provision by Bill of security over the Risby Land for Neil to obtain a farm development loan and personal borrowings, Neil added:

"So, notwithstanding that your uncle got no benefit out of this he was quite happy for you to put up his land as security for your borrowings? -- Yeah, that's right, yeah.

That's the way he reacted to you all the time, wasn't it? -- Most of the time, yes.

Whatever you wanted you could have? -- Not all the time.

Well, can you give me one instance of when you wanted something and he wouldn't give it to you? -- Well, early in the piece I know when I wanted to buy a new tractor he wouldn't let me do that.

How many years ago was that? -- Probably 1980 and that."

The Court held that unfair advantage had been taken of Bill in the following way:

Bill's goal to preserve his rural interests intact and his perception that Neil was the candidate to provide reliable and experienced management thereof were significant elements in his emotional attachment to and dependency upon Neil. The initiative to utilise the circumstance of the sale of the Injune Land (to the retention of which Bill had been opposed) for the irreversible implementation of Bill's wishes during his lifetime came from Neil. It is not an answer that there was no finding that Neil had pursued the initiative to its implementation in July and November 1988 with the motive or purpose of forestalling any change in Bill's testamentary intentions. The equity to set aside the Deed may be enlivened not only by the active pursuit of the benefit it conferred but by the passive acceptance of that benefit. 64

The majority then held that only the deed of forgiveness of debt should be set aside, to the extent that the plaintiffs may have had rights to further provision. The Majority undid only part of the transaction so that the size of the estate would be increased by so much of the newly “unforgiven” debt as would represent an award of further provision that the widow and daughters might have received, had they still had a claim.

In this way, the estate was enlarged by an amount which Bill’s family would have received on a provision claim (even though they no longer had one) and Neil’s option was neatly sidestepped (as the amount came back representing a chose in action not an asset subject to the option).

Clearly then, the lessons are that where such lifetime transactions are to occur, they must be properly structured and the donor should receive independent legal advice so that the chance of such an oblique undermining of the transaction is reduced.

Again, human nature being what it is, sometimes people try to hold on to their assets during their lifetimes and rely upon legal devices to quarantine their assets from their estate (and thus from any claims) at death but not before. This is what happened in Barns-v-Barns. 65

Barns concerned another family farm. The father, mother and son wished to ensure the passing of the family farm to the son and avoid any difficulty with the adopted daughter. Advice was received as to how any claim by the adopted daughter could be avoided. The scheme involved an agreement between the father, mother and son to the effect that the father and mother would make mutual wills, leaving everything to each other and if they did not survive, everything to the son. Mutual wills were chosen as they imposed a contractual duty on each willmaker not to change the wills. This is in distinction to the usual situation where a willmaker is free to change their will at any time.

The logic of the scheme was apparently that because of the contractual duty not to change the wills, the assets of the father upon death would be subject to a trust as a result of his contractual obligations. As such, it was thought those assets would not fall into his estate as he was not the beneficial owner of those assets, in that he was contractually restricted in his dealings with them. As we know, only assets in the estate can be the subject of redistribution in a claim for provision.

There had been previous Privy Council authority to the effect that such a scheme would remove the assets from the estate and thus defeat a claim for provision. 66

It was patently clear on the evidence (and this point was continually emphasized by Kirby J during argument) that the whole scheme was directed to avoiding the result where the adopted daughter would be able to bring a family provision claim and thereby jeopardize the son’s ultimate ownership of the farm.

The issue that was determined by the High Court was as follows: when a testamentary provision is made pursuant to a legal obligation on the part of the testator, is the property the subject of that provision available as part of the estate which may be redistributed under the Act? 67

The majority held that it was.

The surviving wife had two different but related kinds of rights, first, as a contracting party who had been promised (by deed) that a will would be made in her favour and would remain unrevoked. This in fact occurred. Second, she was a beneficiary under the unrevoked will. Obviously, a family provision claim was always going to affect a mere beneficiary. Did the wife’s position become stronger because of the contractual promise made to her? The answer was no.

Gleeson CJ held that because the Act imposed a restriction on freedom of testamentary disposition, a promise to make a testamentary disposition (the source of the wife’s contractual rights) was subject to the potential operation of that legislative restriction. 68If the making of a gift under a Will was insufficient to defeat a TFM claim, then a promise to make a gift under a Will was also insufficient.

Gummow and Hayne JJ treated the problem as one of construction, the meaning of “the estate” of the deceased, being the only source of any provision under the relevant legislation. They referred to the remedial character of family provision legislation and endorsed earlier judicial comment that it was to be construed so as to give the “most complete remedy the phraseology would allow”. 69They referred to the fact that upon death, all of the assets of the estate vest in the executor, whose duty is to duly administer the estate and then and only then, provide the beneficiaries with the appropriate fruits of that administration. The beneficiaries do not have property rights in the assets, but only have a right to the fruits of a due administration by the executor. 70 The purpose of the agreement for mutual Wills, was to pass the property upon due administration. 71 The point of due administration was where the statutory provisions could intervene.

The interpretation of “estate” contended for by the respondent excluded from the “estate” property passing under the Will by reason of some additional contractual arrangement, as opposed to that passing by reason of the deceased’s bounty or generosity. 72

Gummow and Hayne JJ observed that to read down “estate” in this way was not justified on the face of the Act or and flew against the approach which should be adopted in construing remedial legislation. 73They approved the approach of earlier cases which adopted a purposive construction of the relevant provisions as against those which did not. 74

They concluded that a promise to leave property by a Will does not carry with it an unqualified warranty that the gift will take effect. The rights of the promisee are to be drawn through the Will and are subject to laws affecting testamentary succession, including family provision laws. 75

Kirby J also agreed with Gleeson CJ that promises to make certain provision were ever subject to interception by family provision legislation 76 and agreed with the purposive construction undertaken by Gummow and Hayne JJ. 77He also added that where conduct is affected by the written law, it is the duty of the courts and the community to give full effect to the written law, even where to do so will necessitate a departure from rights and obligations conferred or imposed by previous judge made law. 78

The effect of the decision is to further reduce ways in which claims can be avoided by inter-vivos agreements. The transcript of the proceeding before the High Court showed this to be an essential concern of many members of the bench.

A claim has also been successful against a will made pursuant to a separation agreement made between husband and wife. 79

The High Court has been very much alive to efforts to avoid the operation of the respective statutes which allow for family provision claims. The arrangement of one’s affairs with the intention of avoiding such claims should be done with considerable care, with the willingness of the Courts to uphold the operation of the statutes never far from the advisor’s mind.

FOOTNOTES

  1. Transcript of argument in Barns-v-Barns ([2003] HCA 9) on first day of hearing 12 August 2002

  2. Vigolo-v-Bostin [2005] HCA 11 at [15] and ff

  3. Section 91 (1) Administration and Probate Act 1958 (Vic.)

  4. Vigolo-v-Bostin at [25]

  5. Blore-v-Lang  104 CLR 124 per Menzies and Fullagar JJ at 135

  6. Grey-v-Harrison [1997] 2VR 359 per Callaway JA at 366

  7. Collicoat-v-McMillan [1999] 3 VR 803

  8. Per Gleeson CJ at [37]

  9. At [37]

  10. At [122]

  11. At [80]-[81]

  12. Re Sinnott (dec'd) [1948] VLR 279 at 280–1

  13. Although in the case of the latter, this seems to have been qualified by the High Court as early as 1957, see McCosker v McCosker (1957) 97 CLR 566 at 576 per Dixon CJ and Williams J.

  14. Re Bodman [1972] Qd R 281, and see also the logical conclusion that the principle is to be modified to be gender neutral in Re: Will of Lewkowicz [2001] ACTSC 54 at [40].

  15. Hughes v National Trustees Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134 at 147. There are previous examples of almost all of these situations in the various States. Note also that ill treatment and neglect of children when young may constitute a special claim for the purposes of an adult’s family provision claim; Baird-v-National Mutual Trustees Ltd BC 9502528, SCV per Harper J.

  16. Kleinig v Neal (No 2) [1981] 2 NSWLR 532 at 541–5 ; Kearns v Ellis (CA(NSW), Glass, Mahony and McHugh JJA, No CA363/83, 5 December 1984, unreported, BC8400149) ; Hunter v Hunter (1987) 8 NSWLR 573 ; Gorton v Parks (1989) 17 NSWLR 1; Golosky v Golosky (CA(NSW), Kirby P, Handley and Cripps JJA, No 40012/91, 5 October 1993, unreported, BC9302134) ; Public Trustee v Waterhouse (CA(NSW), Mahony, Hutley and Reynolds JJA, No 40170/89, 30 September 1992, unreported) . See also Bondelmonte v Blanckensee [1989] WAR 305; McCosker v McCosker (1957) 97 CLR 566 and Hawkins v Prestage (1989) 1 WAR 37 per Nicholson J at 45,  Lacey v Lacey (FC(WA), Kennedy, Franklyn and Walsh JJ, No FUL136/97, 25 June 1998, unreported, BC9802962) and Curran v Duncan [2006] WASC 9 at [10] and [14]. In South Australia, although Re: Sinnott (through its subsequent manifestation in Hughes’ case) continues to impose the requirement of a special need or claim, it appears to be considered that the examples of same provided in Hughes’ case are “so broad” as to suggest that as a matter of practical reality, the approach taken with adult sons will not be very different to other applicants; see Delisio and Others v Santoro, [2002] SASC 65 referred to with apparent approval in Fennell-v-Aherne [2005] SASC 280. In Tasmania, it appears that the Courts take the view that although there is no prima facie debarrment to a claim simply by virtue of being an adult son, the fact of adulthood is a very relevant factor in establishing a need for maintanence by an adult son or daughter, as Harper J observed in Blair-v-Blair [2002] VSC 95; see Morse-v-Morse [2003] TASSC 203 at [26]. However, In ACT Re: Sinnott was cited with apparent approval and without apparent qualification in Re: Will of Lewkowicz [2001] ACTSC 54 at [40] and in Queensland , Re: Sinnott was cited with apparent approval and without apparent qualification as recently as 2005 in Higgins-v-Higgins [2005] 2 Qd R. 502.

  17. Allan-v-Allan [2001] VSC 424; see also Marshall-v-Spillane [2001] VSC 371, Blair-v-Blair [2002] VSC 95 and Blair v Blair (2004) 10 VR 69; [2004] VSCA 149, per Chernov JA [20]–[22]

  18. Blair-v-Blair [2002] VSC 95 at [7]

  19. Kleinig v Neal (No 2) [1981] 2 NSWLR 532 at 540 per Holland J; see also Wenn-v-Howard [1967] VR 91 where a successful claim was made against the estate of a strict Roman Catholic parent by children who had rejected the faith, married in Registry offices and in one case, married a divorcee.

  20. McKenzie-v-Topp [2004] VSC 90 at [45] per Nettle J

  21. [2005] VSC 354 at [121]–[124]

  22. Walker-v-Walker SCNSW unreported decision of Young J 17 May 1996 at 30;  see also comments of EM Heenan J in Curran v Duncan [2006] WASC 9 at [57].

  23. [2002] NSWSC 38

  24. [2002] VSC 378

  25. At [11] and [20]

  26. SCNSW unreported decision of MacCready M, 12 August 2003

  27. [2004] NSWSC 208

  28. At [36]

  29. [2004] NSWSC 365

  30. At [40]

  31. At [45]

  32. [2005] TASSC 34

  33. [2005] NSWSC 327

  34. [2006] VSC 101

  35. [2006] VSC 300

  36. [2006] VSC 346

  37. [2006] WASC 9

  38. At [61]

  39. At [43]

  40. At [64-5]

  41. Marshall-v-Spillane [2001] VSC 371

  42. Sanderson-v-Bradley [2004] VSC 231

  43. [2002] VSC 61

  44. At [69]

  45. Iwasivka-v-State Trustees Ltd [2005] VSC 373

  46. Petrucci-v-Fields  [2004] VSC 425

  47. Bentley-v-Brennan [2006] VSC 113

  48. Re Callaghan (deceased) [1984] 3 All ER 790; Re Fulop Deceased (1987) 8 NSWLR 679

  49. [2004] VSC 90

  50. At [58]

  51. At [60]

  52. At [17]

  53. [2004] VSC 290

  54. [2005] VSC 172

  55. [2005] QSC 200

  56. [1] Lieberman-v-Morris, (1944) 69 CLR 69. Note also that a stipulation that a beneficiary shall lose their entitlement if they challenge the Will is void, In the Will of Gaynor (dec’d) [1960] VR 640.

  57. (1998) 194 CLR 457

  58. Bridgewater per Gleeson CJ and Callinan J at [33]

  59. See at [109]

  60. Per Gaudron, Gummow and Kirby JJ at [82]

  61. Per Gaudron, Gummow and Kirby JJ at [95-6]

  62. Per Gaudron, Gummow and Kirby JJ at [100]

  63. Per Gaudron, Gummow and Kirby JJ at [114]

  64. Per Gaudron, Gummow and Kirby JJ at [122]

  65. [2003] HCA 9

  66. Schaefer-v-Schuhmann [1972] AC 572 which had overruled its previous decision in Dillon-v-Public Trustee of New Zealand [1941] AC 294. Note that one factor in the Barns High Court declining to follow Schaefer was the fact that the Privy Council had constituted the first tier of appeal from Street J in New South Wales, hence the Privy Council had not had the benefit of the High Court’s determination on the matter.

  67. Barns at [18] per Gleeson CJ

  68. Per Gleeson CJ at [33]

  69. Per Gummow and Hayne JJ at [44]

  70. Per Gummow and Hayne JJ at [50] and [56], citing Official Receiver-v-Schulz 170 CLR 306 at 312-4

  71. At [91]

  72. Per Gummow and Hayne JJ at [64]

  73. At [68]

  74. At [114]

  75. At [115]

  76. At [129]

  77. At [124]

  78. At [126]

  79. Re Monshing (dec'd) [2003] VSC 498

STUDY POINTS

  1. What is the basic principle underlying Family Claims legislation?

  2. Explain at least three areas where traditional approaches or emphases regarding Family Claims by adult children have recently changed, and why.

  3. Explain the potential effect of family disharmony or estrangement may have on a Family Claim.

  4. Explain the two basis upon which step children I Victoria may be able to establish a claim for provision or further provision.

  5. Explain the key issues before the High Court in Bridgewater v Leah, and the key aspects of the majority decision.

  6. Explain the key issues before the High Court in Barns v Barns, and the key aspects of the majority decision