What does the Court do in South Australia to make an estate claim?

In South Australia, it is the Inheritance (Family Provision) Act 1972 (‘the Act’) that permits certain persons to make a claim on a deceased person’s estate.

The Act says that if an eligible person is ‘left without adequate provision for his proper maintenance, education or advancement in life’ then the Court may make an order for provision out of the deceased’s estate.

But how does the Court do this?

Once it has been determined that a person is entitled to make a claim under the Act the Court will usually undertake a two stage process. The two steps are:

Step 1 – Was the particular person left without adequate provision for his or her proper maintenance, education or advancement in life?

Step 2 – If yes to the first question, what provision should be made out of the estate of the Will-maker (the ‘Testator’) for that person?

The first step involves the Court looking at all of the facts and circumstances of the case and applying those to a legal criterion. It also requires the Court to make a value judgment.[i] This first question is to be decided at the date of death of the Testator.

The second step requires the Court to exercise its discretion, and must be determined at the date of the Court order. The Court will try to consider what a wise and just Testator would have done taking into account all of the circumstances.

The Court seeks to determine the provision that:

[…]a just and wise […Testator…] would have thought it his moral duty to make in the interests of […the applicant…] had he been fully aware of all the relevant circumstances.[ii]

There are two words used in the first step that usually require some analysis. These words are ‘adequate’ and ‘proper’. What is ‘adequate provision’ and what is ‘proper maintenance, education and advancement in life’?

Justice Debelle in a South Australian case from 2007 said:

The word “proper” connotes something different from the word “adequate”. The word “proper” connotes an ethical position as to what allowance should be made. Adequate provision for the proper maintenance of a child is not limited to providing what is sufficient for a basic subsistence or satisfying the mere needs of that child. (Citations omitted)[iii]

In a case from 1957, the Court said that ‘proper’ means proper in all the circumstances of the case and:

[…]must be considered in the light of all the competing claims upon the bounty of the testator and their relative urgency, the standard of living his family enjoyed in his lifetime, in the case of a child his or her need of education or of assistance in some chosen occupation and the testator’s ability to meet such claims having regard to the size of his fortune.[iv]

It is said that the Court must determine what is adequate and proper from its ‘own general knowledge and experience of current social conditions and standards’.[v] The Court cannot simply rewrite the Will without taking into account all of the relevant circumstances, including the size of the estate, and the age, health and means of all potential claimants and beneficiaries.

If you are not satisfied with a family member’s Will, you should seek legal advice to determine whether you may have been left with adequate provision. We can assist you with all of the steps in making a claim on a deceased person’s estate.

If you have been left out of a Will call our Wills and Estates lawyers on 13 43 63 to contest or challenge this Will. Our offices in South Australia are in Adelaide and Whyalla.

[i] Parker & Ors v Australian Executor Trustees Limited [2016] SASC 64, [21] per Lovell J.

[ii] In re Allen (Deceased), Allen v Manchester & Anor [1922] NZLR 218.

[iii] Bowyer v Wood & Ors [2007] SASC 327, [40]’per Debelle J.

[iv] McCosker v McCosker (1957) 97 CLR 566, 571 per Dixon CJ and Williams J.

[v] Goodman v Windeyer (1980) 144 CLR 490, 502.