By Troy Palmer, Partner, Isobel Feben, Lawyer and Rebecca Brun, Law Graduate

In this case, an estranged daughter of the deceased was left out of the entirety of the deceased’s Will. The deceased had a long-term partner (the first respondent) and two adult sons. The entirety of the estate was left to the first respondent, which was to be held on trust for the benefit of the two sons if the first respondent did not survive the deceased.

The daughter applied for an order pursuant to the Testator’s Family Maintenance Act 1912 (the Act), for a family provision. Under s 3(1) of the Act, the Court has the power to make an order that a provision shall be made out of the estate, as the Court or judge thinks fit, if the applicant is left without adequate provision for their proper maintenance and support from the testator’s will.

The Court was satisfied in this case that the daughter had been left without adequate provision. In coming to this determination, the Court considered a number of factors including that:

• the daughter was not in a strong financial position at the time of the testator’s death and did not have good prospects of improving her position in life. The daughter was an unemployed 47 year old woman who was dependent on the public welfare system with no assets of substance;
• the deceased’s estate was worth $6 million and therefore there were ample funds to enable a provision for the daughter whilst providing for the first respondent, two sons and for the family business to expand and improve; and
• the deceased had displayed little regard and affection to the daughter throughout her child and adulthood and provided no direct financial support. The Court highlighted that this ‘abnegation of parental responsibility during childhood increases the moral obligation of the testator to the child’.

The Court noted that the consideration of what provision should be made to the daughter is to be assessed from the perspective of a ‘wise and just testator aware’. In this determination, the Court considered the daughter’s ability to work in the future, the living standard which she is accustomed to and the amount sufficient to relieve her fear of ‘political vagaries associated with public spending on housing, healthcare, pensions and aged care’.

The Court concluded $800,000.00 was sufficient for the applicant to be able to own a low maintenance home and keep up with expenses for the home, cover rising living expenses and private health insurance and allow for an extra benefit. The Court found that this amount provides for the proper maintenance and support of the daughter without unduly interfering with the wishes and goals of the testator, as the Court’s role in such circumstances is not to ‘re-write the will’.