Orders for provision and property that may be subject to an order

 

2.32  If the court determines that the deceased person had responsibility to make adequate provision for an applicant’s proper maintenance and support, and did not do so, it may then make an order for provision (or ‘maintenance order’). 54 In Victoria, the court can only make provision out of the estate of a deceased person.55

2.33  Unless the court orders otherwise, provision is to be made by those entitled to share in the estate in proportion to their interests in the estate.56 Where the deceased person dies leaving a will, the order for provision is treated as a modification to the will. 57   Where the deceased person dies wholly or partially intestate, the order operates as a modification of the intestacy provisions in the Administration and Probate Act.58


Farm propery and orders for provision

2.34   The Commission notes that particular issues arise when the principal estate asset is a farm. There are two main considerations in relation to farms in the family provision context:

•    The farm is often an indivisible asset.

•    One or more of the children in the family are likely to have spent many years working on the family farm for little reward, and it may be their livelihood.

2.35   The statutory criteria in the Administration and Probate Act, set out at [2.10] above, give the court broad jurisdiction when determining a family provision claim.59 For example, the court is required to consider the size and nature of the estate and any contribution (not for adequate consideration) of the applicant to building up the estate.60

2.36   As with other types of family provision cases, the court does not interfere lightly with dispositions under the deceased person’s will. Wherever possible, the court seeks to leave dispositions of farming property intact and tries to make provision for successful applicants out of other property in the estate.61 It will take into account contributions and commitments made by particular beneficiaries to particular properties.62

2.37   If there is only a single piece of farming property in the estate from which provision could be made, the court will look for a creative solution so that the farm property, or parts of it, do not need to be sold. For example, in Torney v Shalders, Justice Mandie ordered that the deceased person’s daughters receive substantial monetary legacies, ‘charged on the real estate’, or farm property, that had been left to the deceased person’s son.63 The court was satisfied that, given the son’s ‘substantial independent asset position’, he would be able to satisfy these charges without having to subdivide or sell the farm property.64

 

FOOTNOTES

 54   Administration and Probate Act 1958 (Vic) ss 91(1)–(3).
 55   Ibid s 91(1).
 56   Ibid s 97(2). There is also a proviso to this provision that deals with the situation where one piece of property is given to separate beneficiaries successively (that is, to one beneficiary for life and another thereafter). In this scenario, the two separate interests in the property are not to be treated separately for the purposes of meeting a successful family provision claim, but charged against the property as a whole: s 97(2).
 57   Administration and Probate Act 1958 (Vic) s 97(4)(a).
 58    Ibid s 97(4)(b). Intestacy is discussed in a separate consultation paper
 59    Administration and Probate Act 1958 (Vic) s 91(4).
 60    Ibid ss 91(4)(g), (k).
 61    See, eg, Re Monshing; Woods v Stevenson (No 1) [2003] VSC 498 (19 December 2003) [14].
 62     Ibid.
 63     Torney v Shalders [2009] VSC 268 (3 July 2009) [126].
 64     Ibid [121]. For further discussion of the interaction between family provision legislation and inheritance of farms, see, eg, M B Voyce, ‘The Impact of the Testator’s Family Maintenance Legislation as Law and Ideology on the Family Farm’ (1993) 7 Australian Journal of Family Law 191.

Publication Status: 
Publication Process: 

Main menu

Back to top