Most people assume ─ quite properly ─ that the clauses of their Will are a binding instruction as to how they wish to see their estate distributed after their death. That is, however, not always the case. In a variety of circumstances, the terms of a Will can be upset by challenges made against the estate on a variety of grounds, including where the capacity of the deceased is in question or where the validity of the Will is otherwise in question.
Among the most common of challenges to a Will in Tasmania are applications under the Testators Family Maintenance Act 1912 (Tas). “TFM”, or “family provision” claims as they are otherwise known, are claims which an eligible person makes against the estate of a deceased person, claiming that they did not receive adequate provision from that estate for their own proper maintenance and support, in circumstances where the law expects they would have received a distribution. An eligible person under the TFM Act includes the deceased’s spouse or partner, children (including adopted, surrogate or stepchildren), parents and a former spouse or partner entitled to receive maintenance from the deceased.
In a recent Supreme Court decision of Browning v Dixon [2023] TASSC 29, AsJ Holt awarded the adult daughter of the deceased the sum of $400,000 and the contents of the deceased’s house and shed despite the deceased and his daughter having fallen out some 12 months earlier. Only 7 days before his death, the deceased made a new Will by which he removed his daughter as a beneficiary, having previously being entitled to his household contents and half of the residue of his estate under his prior Will. Under the new Will, the residue was instead to be split equally between the deceased’s son, and his long-time friend and neighbour. There was no argument raised as to capacity of the deceased but notwithstanding, AsJ Holt considered it “appropriate in all of the circumstances” to instead award the applicant the entitlements which she would have gotten under the deceased’s 2017 Will. His Honour did so because he was persuaded that the applicant was left without adequate provision for her proper maintenance and support by her father. It is not the role of the court to rewrite the testator’s Will according to how the court views the testamentary power should have been exercised, but instead turn its mind to the considerations applicable to the applicant and the circumstances at large to determine what constitutes adequate provision for the maintenance and support of the particular applicant. The usual considerations are:
- The size and nature of the estate;
- The applicant’s financial circumstances;
- The claims of the primary beneficiaries named in the Will;
- The relationship between the deceased and the applicant and the relationship between the deceased and the primary estate beneficiaries.
Applying those principles, his Honour determined that the estate, though not large, was sufficient to accommodate financial provision being made to the applicant to enhance her chances of owning a home, having a buffer against contingencies, attending to prospective medical needs and, at least in the form of owning a home, having security in later life. The claims of the other beneficiaries were not sufficient to negate an obligation on the part of her father to make a material financial bequest to his daughter to improve her future prospects.
This recent decision provides a useful summary of the applicable principles in a TFM application and is a timely reminder as to the Supreme Court’s approach to claims made by adult children. Whilst there is an expectation that adult children are capable of sustaining themselves after reaching a certain age, the law does not excuse parents from providing for the maintenance and support of their children into adulthood, even after their death.
Dobson Mitchell Allport is experienced in acting for both contested estates and TFM applicants, in addition to a variety of other estate-related claims. If you require advice or assistance, please contact:
