The Supreme Court of Western Australia has recently handed down two decisions regarding section 6 of the Family Provision Act 1972 (WA) (Act) where an adult child in each case was disputing the distribution of a deceased parent’s estate.
The cases highlight that although an adult child may be able to demonstrate a need for additional provision from their deceased parent’s estate, this in itself will not necessarily be enough in an application under the Act. The Court will take into account a number of matters, particularly the actions of the adult child – both entitling and disentitling – in determining whether adequate provision was made.
Varying distribution of an estate
Section 6 of the Act provides the Court with powers to vary a will or the distribution of an estate in order to provide for a partner, child, stepchild, grandchild or parent of the deceased, provided they meet the criteria in section 7 of the Act (family member).
In determining an application under the Act, the Court is required to carry out a two stage process:
- Was the provision which was made for the applicant adequate for his or her proper maintenance, education and advancement in life?
- If the provision was not adequate, what provision ought to be made out of the deceased's estate for the applicant?
In determining whether the provision was adequate, the Court will usually take into account the following four factors:
- the applicant's financial position;
- the size and nature of the deceased's estate;
- the totality of the relationship between the applicant and the deceased; and
- the relationship between the deceased and other persons who have a legitimate claim upon his or her estate.
The question of whether the applicant has been left without adequate provision for their proper maintenance is determined by reference to circumstances as they existed at the date of the death.
The second stage of the process is only applied if the provision which was made for the applicant was inadequate. The Court has no general power to rewrite the deceased’s last will and can only alter the will to the extent necessary to make proper provision.
If the Court determines the provision was inadequate, the Court can attach conditions to any provision it makes or refuse to make an order on the grounds that the family member’s character or conduct disentitles them to the benefit of an order.
Christie v Christie
In Christie v Christie  WASC 45, the deceased (Ellen) excluded her last surviving child of five (Morris) and instead gave all of her estate to one of her granddaughters (Sasha). Morris challenged his mother’s will, arguing that he was destitute, had no assets and his future prospects were bleak at the age of 68. Sasha accepted that these were the circumstances but argued Morris had engaged in disentitling conduct under section 6(3) of the Act which justified Ellen omitting him from her will.
During the hearing, the Court heard evidence from the parties as well as neighbours and one other surviving granddaughter. Morris had lived with his mother off and on until 1987 at which point he had no further contact with her, although he claimed he tried to keep in touch. He claimed to be a loving son and was at a loss for why he was excluded from his mother’s will.
Sasha alleged Morris was violent towards Ellen and called upon some of Ellen’s neighbours who substantiated Sasha’s story by recounting the abuse and injuries they had witnessed over the years.
The judge formed a very unfavourable view of Morris as a witness. The judge was convinced that Morris was abusive and physically aggressive towards Ellen over many years. He did not accept that Morris was a loving son and believed that Morris was excluded from Ellen’s life because he had treated her badly.
The judge dismissed Morris’s claim on his mother’s estate and Sasha was allowed to keep her inheritance from her grandmother.
Taylor v Taylor
In Taylor v Taylor  WASC 71, the deceased (James) left his house to one of his five children (Allan) and divided the remainder of his estate equally between the five surviving adult children. One of the sons (Lindsay), aged 58, disputed the division of the estate on the grounds that under section 6(1) of the Act James did not make adequate provision from his estate for the proper maintenance, support, education or advancement in life of Lindsay.
Lindsay provided evidence during the hearing of his various medical conditions and all parties agreed that Lindsay had significant health issues. While Lindsay was currently employed, the doctors anticipated he would need mobility assistance in the future and may not be able to work. Lindsay was seeking an additional sum of money to cover health related costs so that he and his wife could live a comfortable lifestyle post-retirement. The judge determined that Lindsay was essentially asking for a top up on the amount he had received from his father.
James was quite unwell in the last few years of his life and either needed to be placed in a nursing home or a family member had to take care of him in his own home. After discussions amongst all of the siblings, Allan volunteered to move in with his dad and take care of him. The assistance James required was very intensive and Allan provided round the clock care to James for the last four years of his life.
The judge concluded that it was not difficult to see how James would favour Allan with the bulk of his estate. It represented gratitude for the selfless way in which Allan conducted himself and there was every moral justification for James disposing of his estate the way that he did. Balancing all of the factors, the judge concluded that James adequately provided for Lindsay in his will and dismissed Lindsay’s claim for an additional provision from his father’s estate allowing Allan to keep the house.
In summary, section 6 of the Act provides the Court with the ability to amend a deceased’s will or the distribution of the estate if a family member has been left without proper provision. The situations in which the court will exercise its discretion turn on the individual facts of each case and the circumstances of the deceased and any potential beneficiaries are evaluated as a whole.
As shown in both these cases, while adult children may be able to demonstrate their circumstances warrant an additional provision from their parent’s estate, the Court must look beyond this need to the conduct of the adult child and the competing claims other beneficiaries may have on the estate. It is not enough that an adult child is living in difficult circumstances if their conduct is such to disentitle them to any provision or, if another child is more deserving, to justify the way the estate was divided. The Court is required to look at the totality of the circumstances in evaluating whether adequate provision was made by a deceased parent and the Court is not easily swayed to alter a deceased’s will.