Maria Tzannes, Solicitor and Barrister, Antunes Lawyers and Advocates
Jennifer Maher, Special Counsel, Kliger Partners (Vic)
Caite Brewer, Callinan Chambers, Barrister and Angela Cornford-Scott, Director, Cornford-Scott Lawyers (Qld)
John Hockley, Barrister, Level 23 Francis Burt Chambers (WA)
Melissa Yule, Consultant, Adelta Legal (SA)
Maria Dwyer and Christine Shokman, Senior Associates, Ogilvie Jennings Lawyers (Tas)
Andrew Freer, Director and Erin Bedford, Associate, KJB Law (ACT)
Introduction
Under the provisions of the relevant states’ and territories’ family provision regime, the court may alter the terms of a valid will or the distribution under an intestacy to benefit applicants who have been left without adequate provision for their:
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“proper maintenance, education or advancement in life" (in NSW, SA, and ACT);
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“proper maintenance and support” (in Victoria, Queensland and Tasmania);
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“proper maintenance, support, education or advancement in life” (in WA).
What is a family provision order?
The purpose of family provision orders is to provide a legacy or increased legacy (or other benefit) to a beneficiary where the court is of the opinion that greater provision should have been made for the applicant by the deceased. The effect of family provision orders is that the orders act as if they were a codicil to the will of the deceased.
Normally testators have testamentary freedom to leave their estate to whomever they like. However, family provision orders enable the court to override testamentary freedom but only to the extent necessary to provide for an eligible applicant's maintenance, or proper maintenance education and/or advancement in life.
The community expects that a testator will ensure that his or her closest relatives and others are not left without proper provision. Only eligible applicants can apply for family provision orders.
The legislation is enacted to provide for the unmet needs of applicants and not to reward good behaviour or to punish bad behaviour. Neither does the legislation exist to create ‘equality’ or ‘fairness’ amongst beneficiaries.
See What is a family provision order?
Types of orders which the court can make
The court is able to make a variety of orders varying the terms of a will or intestacy provisions in relation to the actual (or notional, in NSW only) estate of the deceased such as giving a legacy of money or transferring an asset or creating a trust for a beneficiary.
See Types of orders which the court can make.
Source of law
The family provision regime is embodied in a number of sections of Acts, Regulations and rules of court.
See Sources of law.