Article by Richard Mackenzie

Section 91 of the Administration and Probate Act 1958 provides that the Court may order that provision be made out of the Estate of a deceased person for the proper maintenance and support of a person for whom the deceased had responsibility to make provision (Section 91(1)). The Court must not make an order under sub-Section 91(1) in favour of a person unless the Court is of the opinion that the distribution of the Estate of the deceased person, affected by the Will of the deceased, does not make adequate provision for the proper maintenance and support of the person.

The Court, in determining such, must have regard to various matters; namely:

Any family or other relationship between the deceased person and the applicant;
Any obligations or responsibility of the deceased person to the applicant;
The size and nature of the Estate;
The financial resources (including earning capacity) and the financial needs of the applicant;
Any physical, mental, or intellectual disability of the applicant;
The age of the applicant;
Any contribution (not for adequate consideration) of the applicant to building up the Estate of the deceased;
Any benefits previously given by the deceased person to the applicant;
Whether the applicant was being maintained by the deceased;
The liability of any other person to maintain the applicant;
The character and conduct of the applicant; and
Any other matters that the court considers relevant.
There are two jurisdictional requirements in relation to making an order; namely:

It must be established that the deceased had responsibility to make provision for the proper maintenance and support of the applicant; and
If such responsibility is established, the Court must be of the opinion that the Will of the deceased does not make adequate provision for the proper maintenance and support of the applicant.
The Court considers what provision a wise and just testator would have thought it his moral duty to make in the interests of the applicant.

If the jurisdictional preconditions are satisfied, the amount of any provision which should be ordered and the terms of any such order must be determined by consideration of the facts existing and eventualities that might have reasonably been foreseen at the date of the testator’s death, whereas the question of what orders should be made is to be made by reference to the Estate and facts existing at the time of the hearing of the Court.

It remains necessary to establish a need for provision and maintenance in the applicant and if that need is not established, the Court has no jurisdiction no matter how large the testator’s Estate.

It is further necessary to establish a breach of duty or moral obligation on the part of the testator.

In summary, the Court must first decide whether or not a claim falls within that class of persons for whom the deceased has responsibility and secondly, the Court must consider whether the applicant has been left without proper maintenance and support.

If the deceased has failed in his or her duty to make such provision, the Court has power to exercise its discretion to make an order granting such provision as would have been made by a wise and just testator.

For further information concerning claims in relation to Will disputes, please call Dick Mackenzie at Eales & Mackenzie.