The Justice Legislation Amendment (Succession and Surrogacy) Act – What this Means for Family Provision Claims

The Justice Legislation Amendment (Succession and Surrogacy) Act (‘the Amendment’) came into operation on the 1st of January 2015, and has made a number of significant changes to the way in which individuals may seek Family Provision claims.

Hentys Lawyers were fortunate enough to be involved in the first claim made under this new provision (Brimelow v Alampi [2016] VSC 135), and the comments of the Court in this case provide an excellent overview of how parts of this Amendment are used in practice.

Changes to Eligibility

Prior to the commencement of the Amendment, there were no fixed categories for individuals seeking to make Family Provision claims. All that was required for a provision to be made out of an Estate was that the person applying had to demonstrate that the deceased had a responsibility to provide for their proper maintenance and support.

With regards to face value, this did not seem like a particularly offensive requirement – in fact, it opened the door to a number of claimants who may have otherwise been disentitled from making claims. Unfortunately, this was merely one edge of a double-edged sword. The practical effect of this particularly low bar to eligibility meant that there were a number of frivolous claims – in other words, people who upon closer examination did not have particularly strong claims were able to bring proceedings against an Estate. This would not only needlessly clog up an already over-burdened Court-system with ‘junk’ claims, but would run the risk of adding needless expense and energy to Executors simply seeking to carry out their duties and distribute the Estate.

The Amendment implemented new ‘fixed’ categories that would prevent all of this from occurring. Now, only the following people are eligible to bring a claim for Family Provision:
A spouse or domestic partner of the deceased;

  • A child or stepchild of the deceased;
  • A child of the deceased (including an adopted or stepchild) who, at the time of the deceased’s death, was under the age of 18 years, a full-time student aged between 18 and 25 years or under a disability;
  • A former spouse or domestic partner of the deceased;
  • A registered caring partner of the deceased;
  • A grandchild of the deceased;
  • A child of the deceased (including an adopted or stepchild) who, at the time of the deceased’s death, was under the age of 18 years, a full-time student aged between 18 and 25 years or under a disability;
  • A spouse or domestic partner of a child of the deceased (provided that the child died within one year of the deceased’s death; and
  • A member of the household of which the deceased was (or had been in the past and would have likely been in the near future) also a member.

The Introduction of a ‘Moral Duty’

Prior to the Amendment, a Court was obliged to determine whether or not the deceased had a ‘responsibility’ to provide for the claimant. While again this may seem like a fairly straight-forward way of determining the strength of a claim, the factors that a Court was asked to consider in determining this question were fairly broad and entirely at the discretion of the Court. The practical effect of this ‘responsibility’ test was that quite often parties to a Family Provision claim would not know for certain whether this responsibility existed until the Court had passed its judgment.

Therefore, in the interest of addressing this uncertainty, the Amendment now frees the Courts from their obligation to determine the question of responsibility, and may turn instead to the question of whether the deceased had a ‘moral duty’ to make adequate provision for their proper maintenance and support.

A Moral Duty In Action

The first claim brought under this new Amendment involved a plaintiff who was written out of her mother’s Will on the basis of a falling-out prior to her death. Prior to this falling out, the plaintiff had a close, loving and meaningful relationship with her mother and had even taken time out to personally care for her while she was sick with cancer.

Rather than determine the question of ‘responsibility’, the Court instead found it more fruitful to examine the question of whether or not the plaintiff’s mother had a ‘moral duty’ to provide for her in her Will. Given the nature of the plaintiff’s relationship with the deceased (notwithstanding their falling-out), the Court found that a moral duty did exist and that a provision ought to be made for the plaintiff out of the Estate.

By comparison to the test of ‘responsibility’, this case demonstrates the certain nature of moral duty. From the outset, it is generally much easier to determine whether a moral duty to provide exists – by extension, this certainty allows for potential claimants (and individuals seeking to defend against claims) to better weigh up their chances of success.

In light of the above, if you think that you may find yourself in a Will dispute or Contest, or needing to speak to an Estate lawyer please do not hesitate to contact the team at Hentys Lawyers today.

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