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By: Dominic Wilson, Managing Partner, Craddock Murray Neumann

  1. The Family Provision Act 1982 (FPA) came into operation on 1 September 1983 and applies to the estates of people dying on or after that date.
  2. The FPA was set up to correct unjust or unfair treatment of certain relations or dependants who had been left without proper provision being made for them in a will. People specified in the FPA as eligible persons can apply to the court for provision out of the estate of a deceased person, whether or not there was a will, and whether or not they were mentioned in a will.

Testamentary Freedom

  1. Assuming a person has testamentary capacity, that person has freedom to give away his or her property by will in such a manner as he or she thinks appropriate. The fact that other people may strongly disagree with the terms of the will or have an expectation which is not fulfilled by the will is not relevant subject to the Act.
  2. The Act intrudes upon testamentary freedom. The court construes the Act so that it is not a license to rewrite the will, but is the statutory means by which for eligible persons the court may, in its discretion, provide provision where the court is of the view that proper provision has not been made for the particular eligible person making the claim.
  3. An application under the FPA must be made within 18 months of the death of the deceased. The executor or administrator of the deceased's estate can apply to the court to have this period of time shortened, while an applicant can apply to have it extended.
  4. The Property (Relationships) Legislation Amendment Act 1999, which commenced on 28 June 1999, has far reaching implications for wills and estate matters. The Act amended the De Facto Relationships Act 1984 (renamed the Property (Relationships) Act 1984) to extend its provisions so that they apply to parties to relationships of a more widely defined class, including same sex relationships. A number of Acts have been affected by the amendments,including the FPA.
  5. Those now eligible to apply under the FPA are:
  • the husband or wife of the deceased person at the time of the deceased person's death,
  • a person with whom the deceased person was living in a domestic relationship at the time of death,
  • a child of the deceased person or, if the deceased person was living in a domestic relationship at the time of death, a child of that relationship,
  • a former wife or husband of the deceased person,
  • a person who was, at any particular time, wholly or partly dependent upon the deceased person, and who was, at any time, a member of a household of which the deceased was a member,
  • a grandchild of the deceased person who was, at any particular time, wholly or partly dependent upon the deceased.
  1. A domestic relationship is defined as:
  • a de facto relationship, or
  • a close personal relationship (other than marriage or a de facto relationship, and not necessarily a sexual relationship) between two adult persons, whether or not related by family, who are living together, one or each of whom provides the other with domestic support and personal care (but excluding paid domestic and personal carers including those working for government or charitable organisations).
  1. A de facto relationship is defined as a relationship between two adult persons:
  • who live together as a couple, and
  • who are not married to one another or related by family.
  1. In determining whether two people are in a de facto relationship, the court will take all the circumstances of the relationship into account,including matters such as:
  • the duration of the relationship (generally at least two years),
  • the nature and extent of common residence,
  • whether or not a sexual relationship exists,
  • the degree of financial dependence or interdependence,and any arrangements for financial support, between the parties,
  • the ownership, use and acquisition of property,
  • the degree of mutual commitment to a shared life,
  • the care and support of children,
  • the performance of household duties,
  • the reputation and public aspects of the relationship.
  1. Under the FPA, provisions are made for a person's maintenance, education or advancement in life. The amount comes from the estate or notional estate of the deceased (see below) and takes community standards into account.
  2. Other factors that can influence whether provisions are made for an applicant under the FPA include:
  • the character and conduct of the applicant before and after the death of the deceased,
  • any contribution made by the eligible person towards the deceased's property or welfare,
  • any other matter that the court considers important (e.g.the financial means and needs of the applicant).
  1. The court can make temporary orders that can later be confirmed, changed or withdrawn. An eligible person can forego his or her right under the FPA if the court approves. This could happen in a property settlement following a divorce.

Notional Estate

  1. Sometimes a person disposes of their assets while they are still alive,sometimes to prevent those assets going to certain eligible people after their death. To overcome this, the court can made orders against the 'notional'(i.e. disposed of) estate of the deceased. This is to enable the court to overrule these disposals. A notional estate includes assets and property which the deceased had owned but disposed of for less than market value (known as a'prescribed transaction'). For the court to intervene, the prescribed transaction must have taken place within the following time limits:
  • within three years prior to the death of the deceased if the exchange took place with the intention of denying proper provision for an eligible person from the estate,
  • within one year prior to the death of the deceased if at that time the deceased had a moral obligation to make proper provisions for an eligible person,
  • on or after the death of the deceased.
  1. Generally, the costs of a successful application under the FPA are ordered to be paid for from the deceased's estate. The court always has discretion on who pays the costs.
  2. In all claims, there is a tension between the right of freedom of testamentary disposition and the demands of the FPA. It is the role of the Court to resolve this tension when it is called upon to determine a claim.There can be no preconceived notion of what is adequate and proper provision.Each case must be considered upon its own merits. That is why there is often a warning given to read the cases with discretion ' simply because no case is ever the same as another, and also because each decision involves the exercise of discretion.
  3. Much will depend upon the size of the estate. Where the estate is large a testator may be able to meet all claims adequately, however where the estate is small and there is insufficient to satisfy all legitimate claims all a testator can do is to ensure that the estate is divided between the eligible persons who have moral claims upon him in due proportion to the relative strength of those claims.

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