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Testamentary Promises and the Family Provision Act

Author: Graeme Heckenberg from Heckenberg Associates Solicitors

Frequently people are promised they will be provided for in a will only to find that promise challenged after the deceased's death. This often results in the will being disputed.

The law has to decide how that promise is to be treated in comparison with other claims on the deceased estate.   Recently the Supreme Court decided how promises are to rank with other claims under the Family Provision Act 1982.

The case concerned a Deed that was prepared in anticipation of the birth of a child and stated that the (unborn) child would be provided for in the will of the father. The Deed also stated that the child's share would be equal to that of any other child of the father. It further provided that the father would maintain a valid will during his lifetime reflecting these terms. 

The father did not make a will. He died intestate, leaving the child - a daughter - and a son from an earlier marriage.  The daughter sued on the deed claiming half the estate of her father as her inheritance. She also made a claim under the Family Provision Act. The deceased's de facto spouse of over 20 years claimed the entire estate under the Act.

A key issue was whether the share promised to the daughter under the Deed (being half the value of the estate) should be removed from the assets available for the son and de facto spouse, or whether the daughter's share should rank as a claim with other claims. Clearly the daughter would be better off if the share she was promised was removed from the assets that were available to be contested over by other claimants.

The court held that the daughter's entitlement under the Deed  had to come after adequate provision was made for the de facto. This meant that the daughter was unsuccessful, as the de facto could establish her right to the family home and there was insufficient in the estate to provide for both her and the daughter.

The legal authorities show that the community expects a person to provide a long term spouse with a secure roof over their head and a fund of money to live on if possible. In this case the court would not make orders that would cause the spouse to significantly alter her lifestyle or sell her home to provide for the daughter.

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