A court may consider a family provision order if an eligible person is challenging a Will because it did not adequately provide for their maintenance, education, or advancement in life.
The Court has the statutory power to make consequential and ancillary orders in many ways, including in any other matter the Court thinks necessary. The orders addressing an applicant’s proper “maintenance, education or advancement in life” are not limited to particular purposes or types of provision.
Sections 65 and 66 of the Succession Act 2006 (NSW) give the Court broad powers to fashion an appropriate order reflecting how the deceased may have provided for a beneficiary with their financial resources. That includes an ability to order that any provision made in favour of a claimant be held in trust for the claimant on terms determined by the Court.
If a person is eligible, they must prove that the deceased did not make adequate provision for them. It is a discretionary matter decided by the Court. The Court considers various factors, including the financial needs of the persons claiming and any competing claims.
Maintenance, Education or Advancement
The Court uses generalised descriptions of “maintenance, education or advancement in life”, which allow flexibility for types of provision from the facts of each given case. The descriptions indicate that “provision” covers the many forms of support and assistance that one individual can give to another.
“Maintenance” includes provision over and above a mere sufficiency of means upon which to live but is not confined to that.
“Advancement” goes beyond the need for education and maintenance and extends to a capital payment designed to set a person up in business or upon marriage in a proper case.
Grandchildren
Grandchildren are not automatically entitled to claim provision from their grandparents’ deceased estates. Section 57(1)(e)(ii) of the Succession Act 2006 provides that a grandchild in New South Wales may be eligible if they were a member of the household of the deceased person. We’re dependent on their grandparent and have reasons warranting their claim.
To apply for these orders, a person must meet the eligibility criteria, which vary depending on the state or territory. In some regions of Australia, grandchildren may qualify as eligible persons, allowing them to bring a family provision claim.
The matter
In Papantoniou v Foundouradakis [2023] NSWSC 1374, the plaintiff was a grandchild of the deceased and applied to the Court for provision from the deceased’s estate following her death.
The deceased’s main asset was a $1.6m house left under her will to her three children. However, the plaintiff argued that adequate provision was not made for him, having resided with his grandmother for lengthy periods.
The plaintiff lived with his grandmother, who provided him with care and stability. His uncles, the estate executors, had a different view of their relationship.
Following his grandmother’s death, the plaintiff continued to live in her property and hoped to do so indefinitely. The executors took possession proceedings to evict him.
The New South Wales Supreme Court examined a family provision claim brought by a grandchild of the deceased in Papantoniou v Foundouradakis [2023] NSWSC 1374.
In Smilek v Public Trustee [2008] NSWCA 190, the Court of Appeal observed that in Collins v McGain [2003] NSWCA 190, the Court of Appeal considered that adequate provision for proper maintenance may require provision for contingencies that are unforeseen or no more than mere possibilities. The passage at [28] is as follows:
Allied to the submission as to the content of the concept of advancement was Mr Ellison’s contention that his Honour had focussed on the necessity to identify some specific need, as distinct from considering more general needs, including the provision for contingencies: Permanent Trustee Co Ltd v Fraser (1995) 36 NSWLR 24; Collins v McGain [2003] NSWCA 190. In Permanent Trustee Co Ltd v Fraser, this Court approved the Master’s determination that adequate provision for the proper maintenance and advancement of the 59-year-old respondent required secure accommodation for life and “a capital sum to meet exigencies” (per Sheller JA at 47). In Collins v McGain, this Court considered that adequate provision for proper maintenance may require provision for contingencies that are unforeseen or no more than mere possibilities (Hodgson JA at [6], Tobias JA at [42]).
Papantoniou v Foundouradakis [2023] NSWSC 1374 at 260
Although formulaic ‘heads’ of need commonly occur, they are more like accumulated statistics on what typical plaintiffs need rather than acknowledged categories a plaintiff must deal with, be kept to or both. The judge also examined the term ‘contingencies’ when used as a specific head of claim. Contingencies can be general or particular and concern things not yet considered.
The plaintiff’s claimed needs were not very specific, and there was some ambiguity about his actual financial position. Meek J explained the nature of claims and awards for provision, noting that the Court has unbounded flexibility in how it may award provision.
Contingencies
The Court usually makes provision for contingencies because even if certain future events seem likely or expected, the Court cannot accurately predict the extent of harm or damage a plaintiff might suffer. Therefore, such provisions are made to account for the possibility that unexpected events could occur in the future, which could result in the plaintiff requiring additional resources to address them.
However, in Maria Oliveira by her tutor Ivo De Oliveira v John Antonio Oliveira [2023] NSWSC 1130, A family provision claim was dismissed after the disabled adult daughter of the deceased couldn’t show any basis for an award. The claimant, a 52-year-old woman with severe disabilities, including Down syndrome, autism, epilepsy, intellectual disabilities, and alopecia, is nonverbal and partially blind. The deceased’s estate had passed to her mother, who now resides in a nursing home due to Alzheimer’s disease.
It was apparent that the known facts provided a rational basis for inferring that the likelihood of unforeseeable future adverse circumstances, which the claimant’s financial resources could not cover, was very low; the relevant risks associated with adverse exigencies and lack of financial resources were statistically minimal.
Kunc J assessed the claimant’s financial situation and determined that government support adequately met her needs. The judge acknowledged the case’s sadness but said he had to apply legal principles “rather than yield to natural human sympathy.”
Oliveira represents an exceptional case, and decisions that deny provisions for contingencies in extraordinary circumstances should not be used as a standard for making determinations in other cases.
Therefore, the Court should not assume that Oliveira sets a precedent for denying provisions for contingencies merely because no specific events identified require such provisions in a given case. In particular, the Court should not interpret Justice Kunc J’s comments in Oliveira as mandating the identification of possible adverse events precisely before awarding a sum or component for contingencies.
Justice Young (as he then was) noted that applicants may occasionally require items that they do not directly claim and that some people who are approaching retirement age require a cash fund to cover medical expenses or accommodation, stating:
… Furthermore, it can be seen that there were some items that she has not put in, and again one has to consider that she is entitled to a sum for contingencies, because people who are sixty-eight and over often find that all of a sudden they need some expensive medical procedure, or they have to change house or what have you, and a wife of twenty years is entitled to have a little nest egg or a contingency.
Colosi v Colosi [2013], NSWSC 1892 at [24]
The decision
In determining Papantoniou v Foundouradakis [2023] NSWSC 1374, the Court considered several factors, including the plaintiff’s eligibility to apply and financial circumstances. The Court awarded the plaintiff the sum of $70,000, requiring the placement of these funds into a trust due to his gambling addiction. These funds were to provide for his maintenance, education or advancement in life.
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