What is a Family Provision Claim?
Where a person “the deceased” disposed of his or her property by a will in such a manner that his or her spouse, children, or other dependents (the aggrieved beneficiary) are left without adequate provision for their proper maintenance and support. The court may order that such provision as the court thinks fit shall be made out of the estate of the deceased person for the aggrieved beneficiary.
The nature of a widow’s entitlement to family provision was summarised in the New South Wales case of Luciano v Rosenblum (1985) 2 NSWLR at paragraph 69-70.
“It seems to me that as a broad general rule, and in the absence of special circumstances, the duty of the testator to his widow is, to the extent to which his assets permit him to do so, to ensure that she is secure in her home, to ensure that she has an income sufficient to permit her to live in the style to which she is accustomed, and to provide her with a fund to enable her to meet any unforeseen circumstances”.
This general rule has been approved by the court of appeal of NSW in the case of O’Loughlin -v- O’Loughlin [2003] NSWCA 97.
However, in family provision cases there are no inflexible general rules. Each case is decided on its own facts and circumstances. The Queensland Case of Manly -v- The Public Trustee of Queensland [2007] QSC 388 is a good example of this.
The Will
The deceased’s will made some specific gifts of various chattels and divided the residuary estate equally between the deceased’s 3 adult sons and his wife (Louella).
Background Facts and Circumstances
Louella Manly made a Family Provision Application claiming the will did not make adequate provision for her proper maintenance and support.
Louella lived in the Philippines. The deceased was introduced to her when she was 45 years of age. The deceased proposed in 1997, Louella rejected the proposal. The deceased proposed again in 2000. This time Louella accepted. Louella migrated to Australia in October 2001, and they were married 8 December 2001. The deceased was aged 78, Louella was aged 47.
The three sons were born to the deceased’ first marriage. The deceased separated from their mother and effectively abandoned his sons, having no contact for 34 years. In 1987 the deceased reached out to and reestablished the relationship with his sons. The deceased was living on the Gold Coast; one son lived in Canberra and the other two in Sydney. They kept in touch as work and their limited financial circumstances permitted.
Unusual Feature of This Case – The Agreement to Marry
The sons contended that there was an agreement to marry between Louella and their father, by which their father offered Louella:
- The opportunity to obtain Australian residency;
- Access to a Department of Veteran Affairs Pension for life;
- Free medical care for life (Veterans Pension)
In exchange for which Louella would care for the deceased in his old age and as his Parkinson’s disease advanced.
Louella vehemently denied making any such agreement. The court however rejected her claim she gave up her nursing career in Saudi Arabia to come to Australia to marry for love. The court was satisfied that the agreement had in fact been struck and:
- Louella could not have expected her commitment to “marry” would be particularly long given the deceased’ age and state of health;
- Louella had no expectation of receiving any benefit over and above the right of residency, the DVA pension and its entitlements and ¼ share of the rest of a very modest estate.
Unexpectedly the deceased received an inheritance from the deceased’ brother of $312,608 which was used to purchase a small house.
The evidence suggests that Louella upheld her side of the bargain as a relatively young woman caring for an elderly husband in poor health. Louella made no financial contribution to the acquisition of any assets and some minor contributions to some repairs. She performed the housework and the gardening.
Louella argued that the relationship between the deceased and sons was not good, (that is they were not particularly attentive to their father) and they made some attempt to inappropriately pressure their father to influence the terms of his will. The court rejected both allegations.
Louella’s Case
Louella claimed that the provision in the will (1/4 share of the residuary estate) was inadequate for what, in all the circumstances, was the proper level of maintenance and support she needed.
Louella’s case was effectively that she should keep the real property and any remaining cash after payment of the legal fees because:
- Comparatively the sons’ needs were not as compelling as her own because they each already had a house and some cash in the bank;
- The deceased’s gift to his sons of some of the benefit he was due to receive from his brother’s estate in the amount of $100,000 each son was more than enough for each of them;
- Louella’s health prevented her from working full time;
- As a broad general rule the duty of a testator to a widow is to “ensure that she is secure in her house, to ensure that she has an incomesufficient to permit her to live in the style to which she is accustomed and to provide her with a fund to enable her to meet any unforeseen contingencies (Luciano -v- Rosenblum (1985) 2 NSWLR 65) . In essence she argued as a widow her needs and entitlements were paramount over the sons
The Decision
Justice Meekin rejected Louella’s claim. Justice Meekin was not satisfied that the provision in the will was inadequate for Louella. These were the relevant features of this case:
- The estate was small, having and estimated net value of $457,000, so what is the “proper level of maintenance” must be considered in light of that fact;
- Under the terms of the agreement to marry, Louella had received all she bargained for;
- This was a very short marriage (approximately 42 months). The passage of time therefore had not eroded the significance of the terms of the agreement to marry;
- Louella made no contribution to the acquisition of the assets of the estate and only minor contributions to some maintenance, benefiting her as much as the deceased;
- The will gave Louella a motor vehicle and ¼ of the residuary estate, or approximately $100,000. This would have provided Louella with the standard of home (i.e. relocatable home in a caravan park) and small capital sum for contingencies by providing the standard of living she and the deceased enjoyed prior to the unexpected inheritance from the deceased’s brother;
- Louella had the capacity to work to supplement her pension. Loella failed to tender any evidence from a physician or any medical expert regarding the impact of her injuries on her capacity to earn an income, she was working part time as a cleaner as at the trial date;
- She had the benefit of a lifetime pension and free medical care.
- Louella argued that because the deceased abandoned his children for 34 years, this reduced the moral claim they had against him, and that the $100,000 gift to each fully and justly satisfied any moral claim they had against the deceased. Justice Meekin rejected this argument, finding the sons had a legitimate claim upon the deceased’s bounty, because each had needs. Two had dependent children, one had uncertain employment prospects, one was totally incapacitated from any future employment.
- The court rejected the argument that Louella had a legitimate expectation, that ought to be enforced by the court, of receiving the same standard of living as she enjoyed in the final two years of the deceased’ life.
Louella’s application was dismissed.
Takeaway Points
For the Widow
- The rule in Luciano -v- Rosenblum that is to say, it is the duty of the testator ensure for his widow:
- A secure home;
- Income sufficient to permit her to live in the style to which she is accustomed; and
- Funds to enable her to meet any unforeseen contingencies
Is a rule to guide the court not to compel or bind it.
- More important than the rule is presenting the facts of the case in an admissible, persuasive manner in these critical areas:
- The nature and duration of the relationship between the widow and the deceased. A long harmonious relationship in which children were raised and the widow loyally supported a husband and assisted to build up and maintain his estate is the type of case in which Luciano v Rosenblum applies.
- The widow’s financial position and capacity to earn an income including any health needs now and projecting into the future and associated costs;
- The size and nature of the deceased’ estate;
- The financial and non-financial contributions made by the widow to the deceased’ assets;
- The relationship between the deceased and the deceased’s adult children;
- Financial support provided by the deceased to his adult children
For the Adult Children of the Deceased
- Compelling evidence of need is required, focusing on their:
- Available assets, liabilities, and superannuation;
- Income and living expenses;
- Medical conditions;
- The impact of any medical conditions on earning capacity
- The nature of the relationship with the deceased – i.e. visits, outings, helping out, any contributions to the acquisition, conservation or improvement of the deceased’ assets.
How Madsen Law Can Help
Family provision disputes can be complex and emotionally charged, particularly when they involve competing claims between a surviving spouse and adult children.
At Madsen Law, our experienced Wills and Estates Lawyers understand both the legal and personal sensitivities involved in these matters. We can guide you through the process of contesting or defending a will, assess your prospects of success, and help you reach a fair resolution with compassion and clarity. Whether you are a widow, child, or other eligible claimant, we’ll ensure your rights and entitlements are properly protected.
Contact Madsen Law today to discuss your situation in confidence and receive practical, experienced advice on your family provision claim.
