The freedom of testation is a general principle of succession law, meaning you can leave your estate to whomever you wish. However, this can be unfair and unjust, especially when a spouse or child of the deceased experiences hardship due to the deceased’s whims, such as giving money to a specific organization or neglecting the needs of a dependent. The Inheritance (Family Provision) Act 1972 (SA) allows a court to award part of the deceased’s estate to an eligible applicant, even if the deceased left nothing or very little to that person in the will.
It is possible to file a family provision claim if you have been left out of a Will, received a smaller inheritance than expected, or did not receive any inheritance due to intestacy rules. The basis of a family provision claim is that the deceased person did not adequately provide for a person for whom they owed a moral obligation to make proper provision.
Eligibility for family provision
The criteria for eligible persons varies between each State and Territory. However, some jurisdictions consider siblings a distinct category of eligible persons. For instance, under South Australia’s Inheritance (Family Provision) Act 1972, spouses, children, and grandchildren can contest a will under section 6.
The following relatives can apply for a re-allocation of the deceased’s estate under s6 of the Inheritance (Family Provision) Act 1972: the spouse, a divorcee of the deceased, the domestic partner, a child, a child of a spouse or domestic partner being a child who was maintained wholly or partly by the deceased person immediately before his or her death, a child of the child of the deceased, a parent of the deceased who cared for or contributed to the maintenance of the deceased during their lifetime, and a brother or sister of the deceased who cared for or contributed to the maintenance of the deceased during their lifetime.
Testamentary Freedom v Moral obligation
After establishing eligibility for a family provision claim, the claimant must prove that the deceased had a moral obligation to provide for them and that they haven’t made adequate and proper provision. A court has discretionary power to decide on this matter, considering various factors such as the nature of the relationship, estate value, the deceased’s testamentary intentions, financial needs of claimants, and any competing claims.
Courts have developed specific standards over the years for adequate provision for proper maintenance. The primary measure is that the Court should consider the case as a wise and just family member instead of a fond and foolish one. Some of the critical considerations include the estate’s size, the applicant’s age, health, and financial position. The applicant must prove that they are in financial need or that there is another reason for making a provision for them. For instance, an applicant in a sound financial position may still succeed if the deceased could build their estate through the applicant’s substantial efforts. Lastly, the closeness of the relationship between the applicant and the deceased is also a vital factor.
Intestacy
A claim under the Inheritance (Family Provision) Act 1972 (SA) can also proceed where there is no will and estate distribution follows the statutory order. Other relatives may also make a claim subject to further eligibility criteria. For example, a parent or sibling can claim if they cared for or contributed to the maintenance of the deceased during their lifetime. A claim can be made by a child of the deceased’s spouse or partner if they were wholly or partly maintained by the deceased before their death. A brother or sister of the deceased may be eligible if they can prove that they cared for or contributed to the maintenance of the deceased person.
The matter
In Karbowiak & Ors v Mitolo & Anor [2023] SASC 168, Maurizio Mimmo Mitolo (the deceased) died without a Will on 18 December 2019. His mother, his partner, her son, and his brother survived him. The South Australian Supreme Court considered an application for provision from the estate. The deceased’s mother, is entitled to his estate on intestacy according to s 72G of the Administration and Probate Act 1919 (SA).
The first applicant sought a declaration that she was the domestic partner of the deceased according to s 11B of the Family Relationships Act 1975 (SA). She and her son, the second applicant, are both requesting an order for provision under s 7 of the Inheritance (Family Provision) Act 1972 (SA).
The second respondent, the mother of the deceased, is seeking an order that the first applicant’s claim for a declaration under the Family Relationships Act 1975 (SA) be heard separately, in her personal capacity and by interlocutory application. However, the first and second applicants are opposing the making of this order.
Section 6(j) of the Inheritance (Family Provision) Act 1972 (SA) provides for the persons entitled to claim the benefit of the Inheritance (Family Provision) Act 1972 (SA) concerning the deceased person’s estate. Those persons include
a brother or sister of the deceased person who satisfies the court that he cared for, or contributed to the maintenance of, the deceased person during his lifetime.
6(j) Inheritance (Family Provision) Act 1972 (SA)
By interlocutory application, the third applicant, the deceased’s brother, applied to be joined to the originating application on the basis that he also seeks an order for provision from the deceased’s estate under s 7 of the Inheritance (Family Provision) Act 1972 (SA); the Court may order appropriate arrangements for an applicant’s maintenance, education or advancement, by using the estate of the deceased person, as deemed fit by the Court.
Notice of an application under subsection (1) of this section shall be served by the applicant on the administrator of the estate of the deceased person, and on such other persons as the Court may direct.
S7(2) Inheritance (Family Provision) Act 1972 (SA)
The other applicants submit that the Court made the order without hearing argument or obtaining their consent. By interlocutory application, the first and second applicants asked the Court to make an order for summary judgment dismissing Paul’s claim or an order for the claim to be summarily dismissed.
The first and second applicants submit that even if the third applicant was eligible, that is only the first step in a claim under the Inheritance (Family Provision) Act 1972 (SA).
The first and second applicants submit that the evidence does not establish conduct beyond that expected in a relationship between two caring brothers. Effectively, the evidence is that they were in business together and that companies they owned or controlled distributed money to the deceased. They submit that this does not satisfy the test imposed by s 6(j).
In Illman v Sterrey & Ors[2023] SASC 50 at [35] the Court held that s 6(j) requires something beyond the ordinarily expected conduct in the relationship between two caring siblings.
The decision
The Court was not satisfied that the applicant had established that he cared for or contributed to the maintenance of the deceased in the relevant sense.
Additionally, the applicant must satisfy the Court that the deceased was morally obliged to provide for him from his estate. The first and second applicants contend that the deceased did not have a moral responsibility to make provision for the third applicant; the mere fact of a sibling relationship does not establish an obligation to provide for that sibling. They submit that there is no reason why the deceased would have thought it necessary to make provision for his brother.
The applicant must satisfy the Court that the testator left them without adequate provision for their proper maintenance, education and advancement in life. The onus is on the applicant to prove the need to establish an entitlement for provision from the deceased’s estate. Although “need” is relative, a moral claim alone is insufficient to warrant an order for further provision.
To establish the question of need as a matter of jurisdiction, an applicant for provision must make a full and frank disclosure of their financial and material circumstances. Failure to do so may result in dismissal of the application. The applicant must be able to persuade the Court that it has been presented, at least in broad outline, with the whole picture concerning the applicant’s financial and material circumstances.
Ultimately, the Court dismissed the application by the brother to be joined to the family provision claim, finding that he did not prove the deceased had a moral duty to provide for him or demonstrate a relevant need for provision. However, the Court stated that, as a person eligible under s6(j) of the Inheritance (Family Provision) Act 1972, the brother could renew his application later should he have proof of these missing elements.
Succession Act 2023 (SA)
The South Australian Parliament passed the Succession Act 2023 (SA) on 18 October 2023 and was given the Governor’s assent on 31 October 2023. However, the Act will not come into effect until a date yet to be proclaimed by notice in the Gazette. Once implemented, the Succession Act will significantly change the laws related to wills and estates in South Australia.