Eligibility to make an application: persons for whom the deceased had a responsibility to provide

 

2.13    In Victoria until 1998, only the widow, widower and children of a deceased person could make a family provision application. 10 However, limiting applicants in this way was too restrictive and was resulting in the exclusion of legitimate claims, so case-by-case court determination was substituted by the Wills Act 1997 (Vic).11

2.14    Now anyone for whom the deceased person had responsibility to make provision is entitled to apply to the court within six months of the grant of probate or administration.12 Victoria’s approach to eligibility to make a family provision application is described as ‘criteria-based’, because statutory criteria must be considered when determining whether the deceased person had a responsibility to the applicant, whether that responsibility was fulfilled and whether the applicant should receive a larger share of the estate.13 This approach contrasts with the ‘status-based’ or ‘list-based’ approach, originally taken in Victoria and still taken in other states and territories,14 which relies on the relationship between the deceased person and the applicant.15

2.15    Although the Victorian legislation does not limit applicants’ eligibility by a legislative list of relationship types, the courts still consider the type of relationship, and special characteristics of the relationship, between the deceased person and the applicant when determining whether the deceased person had a responsibility to provide for the applicant.16

2.16    The case law provides guidance as to the types of relationship and the ‘particular quality’ that is likely to give rise to responsibility on the part of the deceased person in Victoria: a duty to provide in one’s will for the proper maintenance and support of a person does not arise unless the relationship between the deceased and the claimant has within it a particular quality. A mere business relationship would not of itself be enough. Nor would one which did not go beyond that of debtor and creditor. Even one founded upon, or which resulted in, acts of kindness or consideration that went well beyond the ordinary, might not do so.17

2.17   The courts have held that the deceased person had responsibility to provide for an applicant, and that an applicant should receive a larger share of the estate, in cases involving a range of different relationships, including: adult children of the deceased person,18 adult children with disabilities,19 adult step-children,20 domestic partners,21 spouses,22 former spouses,23 a ‘close personal companion’ and her child,24 a foster child,25 an adult step-grandchild,26 an adult sibling,27 a widowed daughter-in-law and children,28 a friend/carer of the deceased person.29

2.18    Applicants in a range of different relationships with the deceased person have also been unsuccessful in their claims for provision, or further provision, on the basis that the deceased person:

•    did not have responsibility to make provision for the applicant, or

•    had already made adequate provision for the applicant’s proper maintenance and support.

2.19   Unsuccessful applicants have included the deceased person’s: adult children, 30   adult biological child who had been adopted out at an early age,31 domestic partner,32  former spouse,33 adult siblings,34 infant grandchildren,35 adult grandchildren,36 nephew,37  paid carer,38 friend/carer,39 friend/business partner, 40 friend/sexual partner who claimed that he had been sexually abused by the deceased as a child.41

2.20   As the legislation envisages, each case is decided on its own facts and circumstances, having regard to:

•    the statutory criteria

•    what a wise and just person in the position of the deceased person would have deemed it their moral duty to do.42

2.21    Many claims are settled before being heard in court and, for this reason, limited information about these cases is available. The range of relationships that applicants had with the deceased person in settled cases may be different from the range that proceeded to court hearing. The Commission is interested in receiving more information about family provision matters that have settled before trial.

 

Question

FP1   What factors affect a decision to settle a family provision application rather than proceeding to court hearing?

 

FOOTNOTES

10    Ibid s 91. ‘Widow’ was defined as including former wife entitled to payments of alimony or maintenance: Administration and Probate (Family Provision) Act 1962 (Vic) s 5, which amended Administration and Probate Act 1958 (Vic) s 91.
11     Wills Act 1997 (Vic) s 55, which amended Administration and Probate Act 1958 (Vic) s 91(1); Victoria, Parliamentary Debates, Legislative Assembly, 9 October 1997, 433 (Jan Wade, Attorney-General). In Whitehead v State Trustees Ltd, Justice Bell provides a comprehensive discussion of the history of family provision laws in Victoria, and notes that prior to publication of the National Committee’s 1997 final report on family provision, the Victorian government had already decided to adopt the discretionary, responsibility-based approach to eligibility that was recommended by the National Committee: [2011] VSC 424 (2 September 2011) [24]. His Honour notes that this decision followed consideration of the issue by the Attorney-General’s Law Reform Advisory Council and an expert report, commissioned by the Council, by Rosalind Atherton (Croucher): Whitehead v State Trustees Ltd [2011] VSC 424 (2 September 2011) [24]; Rosalind Atherton (Croucher), Victorian Attorney-General’s Law Reform Advisory Council Expert Report 1: Family Provision (1997).
12    Administration and Probate Act 1958 (Vic) ss 91(1), 99.
13    National Committee for Uniform Succession Laws, Family Provision: Supplementary Report to the Standing Committee of Attorneys General, Queensland Law Reform Commission Report 58 (2004) 3– 4; Rosalind Croucher, ‘Towards Uniform Succession in Australia’ (2009) 83 Australian Law Journal 728, 738. Croucher uses the terminology ‘criteria-based’ or ‘circumstances’ approach interchangeably: at 739.
14    Testator’s Family Maintenance Act 1912 (Tas) ss 2, 3A; Family Provision Act 1969 (ACT) s 7; Family Provision Act 1970 (NT) s 7; Inheritance (Family Provision) Act 1972 (SA) s 6; Inheritance (Family and Dependants Provision) Act 1972 (WA) s 7; Succession Act 1981 (Qld) ss 40 –1, 5AA; Succession Act 2006 (NSW) ss 57, 59.
15    Rosalind Croucher, ‘Towards Uniform Succession inAustralia’ (2009) 83 Australian Law Journal 728, 738–9.
16    As noted at [2.10], above, ‘any family or other relationship between the deceased person and the applicant, including the nature of the relationship and, where relevant, the length of the relationship’ is one of the factors to which the court must have regard: Administration and Probate Act 1958 (Vic) s 91(4)e).
17     Schmidt v Watkins [2002] VSC 273 (24 July 2002) [22] (Harper J).
18     Johansons v ANZ Executors & Trustee Company Ltd [1999] VSC 219 (15 June 1999); Collicoat v McMillan [1999] 3 VR 803; Richard v AXA Trustees Ltd [2000] VSC 341(1 September 2000); Allan v Allan [2001] VSC 242 (25 July 2001); Blair v Blair [2002] VSC 95 (4 April 2002); Penn v Richards [2002] VSC 378 (6 September 2002); Couch v Couch [2002] VSC 502 (21 November 2002); Ross v Ross [2002] VSC 544 (3 December 2002); Re Monshing; Woods v Stevenson (No 1) [2003] VSC 498 (19 December 2003); Herszlikowicz v Czarny [2005] VSC 354 (8 September 2005); Brinkkotter v Pelling [2006] VSC 101 (24 March 2006); Horsburgh v White [2006] VSC 300 (10 August 2006); Vincent v Rae [2006] VSC 346 (22 September 2006); Boyd v State Trustees Ltd [2008] VSC 18 (11 February 2008); Cangia v Cangia [2008] VSC 455 (31 October 2008);Leydenv McVeigh [2009] VSC 164 (30 April 2009); Torney v Shalders [2009] VSC 268 (3 July 2009); Berkelmans v Bulach [2009] VSC 472 (29 October 2009); Yee v State Trustees Ltd [2009] VSC 15 (10 February 2010); Litchfield v Smith [2010] VSC 466 (20 October 2010); Klemke v Lustig [2010] VSC 502 (11 November 2010); Re Carn; Moerth v Moerth (No 1) [2011] VSC 176 (4 March 2011)—one applicant was successful; Hyatt v Covalea [2011] VSC 334 (8 August 2011); Greely v Greely [2011] VSC 416 (31 August 2011); Amicucci v Di Tullio (No 1) [2011] VSC 539 (24 October 2011); Youn v Frank [2011] VSC 649 (16 December 2011).
19     Costigan v Norton [2005] VSC 208 (11 November 2005); White v Muldoon [2006] VSC 204 (8 June 2006); Tavra v Petelin [2011] VSC 359 (8 August 2011).
20     McKenzie v Topp [2004] VSC 90 (30 March 2004); James v Day [2004] VSC 290 (17 August 2004); Keets v Marks [2005] VSC 172 (20 May 2005); Quinn v Robertson [2009] VSC 245 (10 June 2009); Robertson v Koska [2010] VSC 134 (16 April 2010); McCann v Ward [2012] VSC 63 (1 March 2012); Paola v State Trustees Ltd [2012] VSC 158 (26 April 2012).
21     Eins v Kammerhofer [2004] VSC 417 (14 October 2004); Re Sitch [2005] VSC 308 (11 August 2005); Carter v O’Brien [2007] VSC 21(20 February 2007); Sinclair v Forsyth [2008] VSC 250 (3 October 2008), upheld by the Court of Appeal in Forsyth v Sinclair (No 1) [2010] VSCA 147 (22 June 2010); Anslow v Journeaux [2009] VSC 250 (23 June 2009); Sellers v Scrivenger [2010] VSC 320 (26 July 2010); White v Hanover [2010] VSC 577 (10 December 2010); Allen v Huntley [2011] VSC 175 (15 April 2011); Estrella v McDonald [2012] VSC 62 (29 February 2012).
22     Hizak v Henjak [1999] VSC 73 (25 March 1999); Gigliotti v Gigliotti [2002] VSC 279 (19 July 2002); Singvongsa v Madden [2002] VSC 316 (9 August 2002); Ross v Ross [2002] VSC 544 (3 December 2002); Downing v Downing [2003] VSC 28 (24 February 2003);Moore v Moore[2005] VSC 95 (8 April 2005); Costigan v Norton [2005] VSC 208 (11 November 2005); Panozzo v Worland [2009] VSC 206 (25 June 2009); Youn v Frank [2011] VSC 649 (16 December 2011).
23      Coller v Coller [1999] VSCA 11 (15 February 1999); Draskovic v Bogicevic [2007] VSC 36 (1 March 2007).
24      Whitehead v State Trustees Ltd [2011] VSC 424 (2 September 2011). This decision was upheld on appeal: State Trustees Ltd vBedford[2012] VSCA 274 (16 November 2012).
25      Sellers v Hyde [2005] VSC 382 (27 September 2005).
26      Subsasa v State Trustees Ltd [2007] VSC 399 (12 October 2007).
27      Marshall v Spillane [2001] VSC 371 (28 September 2011).
28      Petrucci v Fields [2004] VSC 425 (29 October 2004).
29      Unger v Sanchez [2009] VSC 541 (1 December 2009).
30      Re Carn; Moerth v Moerth (No 1) [2011] VSC 176 (4 March 2011)—one applicant was unsuccessful; Bruce v Matthews [2011] VSC 185 (5 May 2011).
31      Coombes v Ward [2002] VSC 61 (21 March 2002), upheld by the Court of Appeal in Coombes v Ward [2004] VSCA 51 (4 March 2004).
32      Suffern v Suffern-Noble [2002] VSC 389 (11 September 2002); Read v Nicholls [2004] VSC 66 (16 March 2004), although this claim failed for want of evidence rather than lack of responsibility to make provision.
33      Armstrong v Sloan [2002] VSC 229 (14 June 2002).
34     Sanderson v Bradley [2004] VSC 231 (30 June 2004); Petersen v Micevski [2007] VSC 280 (14 August 2007).
35      MacEwan Shaw v Shaw (2003) 11 VR 95.
36      Sherlock v Guest [1999] VSC 431 (12 November 1999).
37      Jackson v Newns [2011] VSC 32 (18 February 2011). The Court summarily dismissed the plaintiff’s application in this case.
38      Valbe v Irlicht [2001] VSC 53 (8 March 2001).
39      Lee v Hearn (2002) 7 VR 595, upheld by the Court of Appeal in Lee v Hearn (2005) 11 VR 270.
40      Schmidt v Watkins [2002] VSC 273 (24 July 2002).
41      Re Bull; Bentley v Brennan [2006] VSC 113 (7 April 2006)
42      See discussion of this point in Forsyth v Sinclair (No 1) [2010] VSCA 147 (22 June 2010). The concept of ‘moral duty’ is discussed further at [2.99]–[2.101], below.

  

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