'Adequate provision' for 'proper maintenance and support'


2.22    Once the court has determined that the applicant is a person for whom the deceased had responsibility to provide, it may only order provision, or further provision, for an applicant if it determines that the deceased person’s will or the operation of intestacy provisions has failed to make adequate provision for the applicant’s proper maintenance and support.  43 These terms have been the subject of judicial consideration.

2.23   The classic statement of what is ‘adequate’ and ‘proper’ is found in the decision of the Privy Council in Bosch v Perpetual Trustee Co Ltd: 44

The use of the word ‘proper’ in this connection is of considerable importance. It connotes something different from the word ‘adequate’. A small sum may be sufficient for the ‘adequate’ maintenance of a child, for instance, but, having regard to the child’s station in life and the fortune of his father, it may be wholly insufficient for his ‘proper’ maintenance.

2.24   This has been elaborated upon by the High Court, which has held that ‘adequacy of the provision that has been made is not to be decided in a vacuum’, 45 that it is not to be determined ‘by looking simply to the question whether the applicant has enough upon which to survive or live comfortably’, 46 and that the terms ‘adequate’ and ‘proper’ must be considered in the context of:

•    the applicant’s age, sex, condition, ‘mode of life and situation generally’

•    the applicant’s needs and capacity, and resources for meeting those needs

•    the nature, extent and character of the estate and other claims upon it

•    what the will-maker regarded as superior claims or preferable dispositions. 47

2.25      When deciding what is ‘adequate’ and ‘proper’ in a particular case, the court is informed by the statutory factors, listed at [2.10] of this chapter.

The applicant’s need

2.26   When determining whether provision in a particular case is adequate and proper, the financial need of the applicant is often a central consideration.

2.27   Financial need has been prioritised in some of the cases to the extent that an applicant will not receive a larger share of the estate unless they demonstrate financial need. In Collicoat v McMillan, for example, Justice Ormiston said that: 48

need’ must be demonstrated before the jurisdiction is exercised. It follows that those who are capable of supporting themselves comfortably, and are likely to able to do so for the rest of their lives, will find it difficult to show any breach of moral obligation to make adequate provision for proper maintenance and support.

2.28   The Court of Appeal has since considered and approved the statement of Justice Ormiston in Collicoat v McMillan. 49

2.29    However, like adequate provision for the applicant’s proper maintenance and support, need is a relative concept. In the often-cited words of High Court Justices Fullagar and Menzies in Blore v Lang, in some instances the applicant’s need ‘is not for the bread and butter of life but for a little of the cheese or jam’ that a wise and just testator 50 would have provided if circumstances allowed. 51

2.30    The Supreme Court of Victoria has emphasised that even if an adult child of the deceased person is independently wealthy, the deceased person may still have a responsibility to provide for them: 52

Because a child has been prudent in his or her financial decisions and thus accumulated a degree of wealth is no reason, where no other competing claim is made, to conclude that a moral obligation to provide for that child does not exist.

2.31      Further, an applicant need not be poor or experiencing financial hardship in order to be awarded a greater share of the estate: ‘it is not necessary for a plaintiff to be indigent, or in difficult financial circumstances, to qualify for provision’. 53



 43   Administration and Probate Act 1958 (Vic) ss 91(3)–(4)(b) (emphasis added).
 44   [1938] AC 463, 476.
 45   Vigolo v Bostin (2005) 221 CLR 191, 231 [122] (Callinan and Heydon JJ).
 46   Ibid.
 47   Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9, 19 (Dixon CJ), cited in Draskovic v Bogisevic [2007] VSC 36 (1 March 2007) [24].
 48   Collicoat v McMillan [1999] 3 VR 803, 820 [47].
 49    Blair v Blair (2004) 10 VR 69, 79 [21] (Chernov JA).
  50   ‘Wise and just testator’ is used here as a phrase that commonly appears in the case law. The Commission generally uses the term ‘will- maker’ rather than ‘testator’.
  51   Blore v Lang (1916) 104 CLR 124, 135 (Fullagar and Menzies JJ, dissenting).
  52   Berkelmans v Bulach [2009] VSC 472 (29 October 2009) [73] (Forrest J).
  53   Unger v Sanchez [2009] VSC 541 (1 December 2009) [99], cited in Story v Semmens [2011] VSC 305 (1 July 2011) [86] (Zammit AsJ). Unger v Sanchez cites Privy Council and High Court authority for the proposition that there is no need for the plaintiff to be in difficult financial circumstances in order to qualify for provision: Bosch v Perpetual Trustee Co Ltd [1938] AC 463, 481; Blore v Lang (1916) 104 CLR 124, 135 (Fullagar and Menzies JJ, dissenting); Vigolo v Bostin (2005) 221 CLR 191, 230 –1 [122] (Callinan and Heydon JJ).



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