A Family Provision claim can arise where an Applicant feels that the Deceased has failed to make adequate provision for them under his or her Will. In determining this, Courts will look at a number of factors, but principally at whether or not the Deceased owed the Applicant a duty to provide for him or her, and whether or not they were supported or maintained by the Deceased.
Despite falling into one of these categories, there are a number of ways that an Applicant can suddenly find themselves ineligible for a Family Provision Claim.
The Death of An Applicant
A hot topic across Australia is whether a claim for Family Provision ‘survives’ the death of an Applicant. In other words, if an Applicant for Family Provision dies while the claim is on-foot, is the claim inherited by any immediate member of the Applicant’s family?
The answer really depends on where you are in Australia. In South Australia and Victoria, for example, the Courts have found that a Family Provision does indeed survive the death of an Applicant – it is simply ‘inherited’ by the nearest surviving family member of the deceased Applicant.
In New South Wales and Queensland, however, the answer is less clear-cut. While there is certainly some evidence to suggest that the South Australian approach has been adopted, the Courts in New South Wales and Queensland have recognised that the death of an Applicant radically alters the relevant circumstances of a Family Provision claim . In these States, a Court’s decision will turn very much on the circumstances of the ‘new’ Applicant.
The Applicant Caused the Death of the Deceased
In the more extreme scenario in which an Applicant for Family Provision caused the death of the Deceased, he or she may not be entitled to bring an application for Family Provision, even though they may have satisfied the criteria for eligibility.
There is considerable debate as to what ‘causing the death’ of a Deceased may exactly encompass. At present, it is generally agreed that murder and manslaughter fall well within this rule, as there are already established common law rules that prevent persons responsible for murder or manslaughter from benefiting from the death of their victims .
Some interesting discussion has emerged where the killing of a Deceased by an Applicant is done through ‘defensive homicide’ – that being, a situation in which the Applicant was forced to kill the Deceased while attempting to defend him/herself. In attempting to define the parameters of this legal rule, Victorian Courts have suggested that it only applies to ‘felonious’ killings; in other words, killings that result in criminal conviction .
Contracting Out Family Provision
In some circumstances, the Applicant may have signed a contract with the Deceased that states they will not make a Family Provision claim upon the Deceased’s passing. While this seems like a strange thing to do, it is fairly common in divorce settlements and pre-nuptial agreements.
Generally speaking, this contracting out of Family Provision claims may be found to be void and unenforceable by reason of public policy. Contracting out Family Provision claims may have the effect of depriving an Applicant of a statutory right, particularly where their financial circumstances or the circumstances between the Applicant and the Deceased have altered dramatically since entering into the contract. Nonetheless, Courts across Australia will take into consideration the terms and conditions of these contractual agreements to help provide guidance and insight into the relationship between the Applicant and the Deceased.
Affoo v Public Trustee of Queensland QSC 309, referring to Mckenzie v Lucas NSWSC 1083.
In the Estate of Crippen(dec’d)  P 108;Gonzales v Clarides(2003) 58 NSWLR 188.
McMillan J in Re Edwards VSC 392, referring to Troja v Troja(1994) 33 NSWLR 268.