Family Provision Applications Where There Is No Will

by Andrew Lind on 3 July, 19

In March 2017, the Supreme Court of Victoria heard a Family Provision Application in an estate where the Deceased passed away without a Will.

Davison v Kempson & Ors [2017] VSC 173

The Deceased passed away on 13 April 2014 leaving an estate with a net value of $1.43 million.

Under the default intestacy rules, the estate was to be distributed equally between her three surviving children: Marc, Remy and Pascale.

Notwithstanding that the three siblings each had an equal entitlement to the estate under the default intestacy rules, Marc successfully applied for further and better provision from the estate under Part IV of Administration and Probate Act 1958 (Vic).

Marc was awarded an additional $125,000 from the estate, with the remainder to be divided equally between the Deceased’s three children.

Similarly in Queensland, under Part IV of the Succession Act 1981, an eligible applicant can apply to the Court for further and better provision out of a deceased estate in the event adequate provision is not made from the estate for their proper maintenance and support.

Alleged Disentitling Conduct

One argument raised against Marc was that his conduct, both before and after the Deceased passed away, disentitled him from further provision.

Marc, who had lived with the Deceased for a number of years, had refused to vacate the Deceased’s home after the Deceased passed away.

This had, in turn, prevented the Administrator from selling the property, thereby delaying the due administration of the estate and causing the Administrator to commence legal action to have Marc removed from the property.

Upon application by the Administrator, the Court found that Marc had continued to frustrate the orderly administration of the estate, causing additional costs to be incurred.

Accordingly, the Court ordered Marc vacate the property as well as bear the Administrator’s legal costs for the application which were to be paid out of Marc’s share of the estate.

It was also argued that Marc was disentitled from further provision from the estate on the basis that he had allegedly:

  • withdrawn $500,000 from a bank account of the Deceased prior to her death in the form of a bank cheque (before later returning the money);
  • failed to maintain the property;
  • failed to pay rates for the property; and
  • denied the estate rental income for a 2.5-year period while he refused to vacate the property.

Notwithstanding this alleged conduct, Marc was successful in his family provision application.

Decision

In deciding the case, some key considerations of the Court were that:

  • Marc had lived with Deceased for most of his adult life in what appeared to largely be a loving relationship;
  • Marc had sacrificed his career to support the Deceased, who was legally blind and required care, which Marc provided;
  • Marc was in financial need, with limited income and no assets, and despite numerous job applications was unlikely to be gainfully employed;
  • Marc’s conduct before the Deceased’s death did not have a detrimental impact on the Deceased or the estate;
  • Marc’s conduct after the Deceased’s death was only relevant insofar as it may have:
    • demonstrated his need was as a result of his own default; or
    • caused a negative impact of the value of the estate.
  • In the circumstances, Marc’s conduct postdating the Deceased’s death was not disentitling and there was no evidence that it had caused a decrease in the value of the estate.

Lessons From Davison v Kempson

Davison v Kempson demonstrates some key features of Family Provision Applications, including that:

  • Family Provision Applications can be brought in circumstances where there is no Will;
  • A successful applicant can obtain an order for more than an equal share of the estate, depending on the circumstances of the case;
  • Ultimately, the amount of provision in a successful application is decided at the discretion of the Court having regard to all the circumstances of the case;
  • Disentitling conduct is misconduct towards the Deceased (as opposed to inconvenience caused to other people, such as carers of the Deceased);
  • Conduct of an applicant after a person passes away has limited relevance to the issue of whether a person has engaged in disentitling conduct.

If you feel you have not been adequately provided for out of a Deceased person’s estate, and would like us to consider whether you are eligible to make a Family Provision Application, please don’t hesitate to contact our team of Wills and Estate professionals.

We can assist you by advising on the application process and, where appropriate, acting in the application.

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