Family Provision - Wills & Probate - Interaction with Family Law Act 1975 (Cth) & Property Settlement - Relief

Family Provision

Effect on Settlements under Family Law Act 1975 (Cth)

Family Provision Claims, Family Provision Orders

[A] Section 79AA(8) - former s 79(8) Family Law Act - Property Settlement Orders - Death of Partner - Moral Obligation - Moral Entitlement: 

• SEE, Family Law Act 1975 (Cth) s 64B(2). 

• "Even after the death of a party to the marriage, an interim order, under s 80(1)(h), is permissible, so long as the requirements of s 79(8) are satisfied. Section 79(8) empowers the Family Court to give effect to the moral claims in respect of the property of the spouses which was made available to answer those claims by the commencement of the proceedings, provided ‘it is still appropriate to make an order with respect to property’: section 79(8)(b)(ii).[7] [7] In the Marriage of Fisher [1986] HCA 61; (1986) 161 CLR 438, 457-458.": Anastasia Zasentseva, 'Navigating interim Property Orders in Family Law' (Foulsham & Geddes, Webpage) <https://www.fglaw.com.au/interim-property-orders-in-family-law/>. 

• Killed by partner prior to final property settlement: "... [82]  When s 79(8) of the Act was first introduced in 1983 there was a questions as to its constitutional validity. That question was resolved by the High Court in Fisher v Fisher (No 2) [1986] HCA 61; (1986) 161 CLR 438; (1986) FLC 91-767. In that decision Brennan J stated at 457–458:— Section 79(8) does not confer jurisdiction on the Family Court to entertain proceedings commenced after the death of one of the parties to the marriage. The proceedings to which it relates are proceedings commenced between the parties to a marriage with respect to the property of those parties or either of them arising out of the marital relationship or otherwise falling within par (ca) of the definition of “matrimonial cause” in s 4(1) of the Act. The proceedings must have been a matrimonial cause commenced pursuant to s 79(1). The death of a spouse will not always extinguish or satisfy the moral claims of the surviving spouse and children to which effect would have been given if the proceedings had been completed. Section 79(8) empowers the Family Court to give effect to the moral claims made in respect of the property of the spouses which was made available to answer those claims by the commencement of the proceedings, provided “it is still appropriate to make an order with respect to property” (s 79(8)(b)(ii)). That qualification on the power, coupled with par (ca)(i) of the definition of “matrimonial cause”, ensure that the jurisdiction is exercised only in cases where the moral obligations arising out of the marriage remain unsatisfied. (emphasis added). Section 79(8) provides machinery for the discharge of those moral obligations in priority to any rights in the property of a party to a marriage which arise by testamentary disposition of that party’s property or by any other devolution of that property on that party’s death. That is a law which governs an incident of marriage in that it provides the machinery for enforcing the moral obligations with respect to property arising from a spouse’s marital relationship. It is a law with respect to marriage. [83]  The question of a ‘moral obligation’ arising out of marriage as discussed by Dean J over thirty years ago was perhaps language of another time or referable to the reasoning of Gummow and Hayne JJ in Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191; (2005) 213 ALR 692; (2005) 79 ALJR 731 where they said at paragraph 69:— 69. Thereafter, in their joint judgment in Singer,14 Mason CJ, Deane and McHugh JJ, after referring to the statement by Salmond J in Allen and to the comments of Murphy J in Goodman and Hughes, said  For our part, we doubt that this statement provides useful assistance in elucidating the statutory provisions. Indeed, references to ‘moral duty’ or ‘moral obligation ‘ may well be understood as amounting to a gloss on the statutory language. 70.It is apparent that their Honours were not using the term “gloss” in its milder sense of a comment or explanation. Rather, they were using it in the same sense as Williams J had done in Coates,15 that is to say, of a paraphrase which is apt to mislead. [84]  Rights created under the Act are sometimes said to be a ‘moral obligation’ or a ‘moral duty’. However, these rights are entitlements arising under the Act. The task of a court is to understand and analyse such legal entitlements when applied to the facts of an intimate partnership through marriage and/or de facto relationship. It is not some moral claim or moral obligation, but recognition of the joint contributions and circumstances of a same sex or heterosexual couple who live as a family, albeit at times optimistically. [85]  I am comforted in this thinking and approach by the comments of the High Court in Stanford v Stanford [2012] HCA 52 where French CJ, Hayne, Kiefel and Bell JJ said:— 52.Whether it was just and equitable to make a property settlement order in this case was not answered by pointing to moral obligations. Reference to “moral” claims or obligations is at the very least apt to mislead. First, such references appear to invite circular reasoning. On its face, the invocation of moral claims or obligations assumes rather than demonstrates the existence of a legal right to a property settlement order and further assumes that the extent of that claim or obligation can and should be measured by reference to the several matters identified in s 79(4). Second, the term “moral” might be used to refer to a claim or obligation that is based on the kind of contribution described in s 79(4)(b) — “the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage … to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them”. But nothing is gained by describing such a contribution as founding a “moral” claim or obligation. Moreover, if the word “moral” was being used in this context with some wider meaning or application, it is important to recognise that it is used in a way that finds no legal foundation in the Act or elsewhere. It is, therefore, a term that may, and in this case did, mislead. The rights of the parties were to be determined according to law, not by reference to other, non-legal considerations. The references by Brennan J in Fisher v Fisher[38] to moral claims should not be misunderstood as suggesting otherwise. [86]  The Full Court touched upon this in Mena & Mena [2016] FamCAFC 85 where Bryant CJ, Strickland and Watts J said:— 88.If what her Honour was referring to at [25] and [73] was a moral obligation on the part of the husband, then his case was not presented in that way. But even if her Honour had in mind some moral obligation, that was a matter between the husband and his mother and should not result in any further adjustment between the husband and the wife, her Honour having already adjusted between them by the generous assessment of the husband’s initial contribution. In other words, an adjustment had been made as between the husband and the wife and any potential adjustment between the husband and his mother, arising from a moral obligation , should not have played any further part in the calculation of the division of the assets of the parties once the adjustment for the husband’s initial contribution had been made. This is the “double counting” submission (described at [51] above) made by the wife and we accept that submission. The wife has, in effect, paid twice, and been unfairly disadvantaged. We accordingly find merit in Grounds 2 and 3. (emphasis added)    [87]  There being in effect no moral obligation, it is now for the Court to determine if these proceedings should continue. ...": Neubert (Deceased) & Neubert and Anor (No 2) [2017] FamCA 829.

• "It is clear, in my opinion, that the effect of s 79(8) is to reverse the result that would otherwise have followed from the death of the husband, viz that his property application would have abated. It provides machinery for the discharge of moral claims made in respect of property of spouses which was made available to answer those claims by the commencement of the proceedings, provided “it is still appropriate to make an order with respect to property”. Where those moral obligations remain unsatisfied, it provides machinery for the discharge of those moral obligations in priority to any rights in the property of a party to a marriage which arise by testamentary disposition of that party's property or by any other devolution of that property on that party's death. ... If the application were dismissed then the benefit which I have already recognised as accruing to the husband and sub-para (b)(i) would be negated by considerations under sub-para (ii). The “moral claims” of the husband and his estate arising from a consideration of s 79(4) and s 75(2) would not be discharged in priority to the testamentary dispositions or devolution of property on his death but rather would be submerged by, and subsumed to, those considerations. That cannot in my opinion have been the intention of the legislature because its effect would be to give the estate a benefit on the one hand under s 79(8)(b)(i) and, on the other hand, to take that benefit away under s 79(8)(b)(ii).": In the Marriage of R T and A E North (1987) 11 Fam LR 735, 745, 750. 

• "[46]  The implications of section 79(8) have been discussed, by the High Court, in a number of cases, including Stanford. Essentially, it is said the provision is designed to satisfy the moral obligations arising from a marriage, which the death of a spouse may have otherwise defeated. In Fisher v Fisher15 Brennan J said: The death of a spouse will not always extinguish or satisfy the moral claims of the surviving spouse and children to which effect would have been given if the proceedings had been completed. Section 79(8) empowers the Family Court to give effect to the moral claims in respect of the property of the spouses which was made available to answer those claims by the commencement of the proceedings, provided “it is still appropriate to make an order with respect to property”: s 79(8)(b)(ii). That qualification on the power, coupled with par. (ca)(i) of the definition of “matrimonial cause”, ensure that the jurisdiction is exercised only in cases where the moral obligations arising out of the marriage remain unsatisfied. Section 79(8) provides machinery for the discharge of those moral obligations in priority to any rights in the property of a party to a marriage which arise by testamentary disposition of that party’s property or by any other devolution of that property on that party’s death. Gibbs CJ (with whom Wilson J agreed) said: It is true that s 79(8) provides for the creation of new proprietary rights after a marriage has been terminated by death. However, those rights may be created only if proceedings with respect to the property of the parties to the marriage or either of them had been commenced while the marriage was subsisting and only if the proceedings are continued by or against the legal personal representative of the deceased spouse; further we are concerned only with the case in which the proceedings arose out of the marital relationship. An order may be made under the subsection only if the Family Court is of the opinion that it would have made an order with respect to property if the deceased party had not died and that it is still appropriate to make an order with respect to property. We are not concerned to consider in what circumstances it would be appropriate to make an order that would benefit complete strangers, but clearly the discretionary power to make an order under s 79(8)(b) should not be exercised lightly.16 [47]  What is clear from the obiter remarks of Gibbs CJ, Brennan and Wilson JJ is that the court is not to exercise its discretion to make a disposition, effectively in favour of a party who was not a party to the relevant marriage, lightly. In essence, careful consideration must be given to the overall appropriateness of such an intervention. ... [50]  Although the High Court indicated that it was not possible to provide any clear definition of what was a just and equitable exercise of the discretion arising under section 79. In an earlier decision, Mallett v Mallett,18 such a discretion was described as being very wide, it remains a discretion to be exercised judicially and in accordance with fixed rules. In this context, the High Court provided three stipulations, which I will attempt to summarise as follows: •Firstly, what is just and equitable must commence with an identification of what are the ordinary common law and equitable principles [and] the existing legal and equitable interests of the parties in the propertypertaining to the relevant case; •Secondly, although section 79 confers a broad power on a court exercising jurisdiction under the Act, to make a property settlement order, it is not a power that is to be exercised according to an unguided judicial discretion; •Finally, whether making a property settlement order is just and equitable is not to be answered by beginning from the assumption that one or other party has the right to have the property of the parties divided between them or has the right to an interest in marital property which is fixed by reference to the various matters (including financial and other contributions) set out in section 79(4). [51]  Federal Magistrate Wilson, albeit prior to the High Court’s decision in Stanford,discussed the interaction between section 79(4) and section 79(8) in Cornell v Stokes .19 After a review of the relevant authorities, he concluded that the following seven considerations were engaged in a case involving the death of a party, after the institution of family law property proceedings: •The estate must demonstrate that the court would have made an order in favour of the deceased person as at the date of death. But, in so doing, the estate is not limited to evidence at the date of death; •In order to satisfy the first prerequisite arising under section 79(8)(b)(i), it is not necessary for the court to determine what orders would have been made; •In so doing the court must embark upon the exercise stipulated in section 79(4); •The court must then determine whether it is appropriate to make an order; •In this context, the court’s discretion should not be exercised lightlyand should only be exercised in limited circumstances, so as to satisfy moral obligations that remain unsatisfied; •The deceased party to the marriage has a prima facie moral entitlement to his or her contributions based entitlements to matrimonial property; •The size of the pool and the needs of the surviving spouse, including section 75(2) factors must be taken into account in formulating any orders. [52]  In summary Wilson FM considered that once the first limb in section 79(8)(b) was satisfied it was not then simply a case of the court applying section 79(4) and section 75(2), as this would deprive the second limb of any utility. It was still necessary to consider the appropriateness of making any order in favour of effectively the beneficiaries of the deceased estate. Whether it was so appropriate was likely to turn on question on what moral obligations the surviving spouse had to meet. In practical terms, what this meant was that: [W]hat the court really looks to is the contributions based entitlement of the deceased party, which the surviving party has a moral obligation to meet, and to then ask whether that entitlement should be adjusted for section 75(2) factors relating to the surviving spouse, or for any other reason.20 [53]  It also seems to me, on the basis of Stanford, the court in determining the appropriateness of whether to make such an order must also consider the application of section 79(2) and whether it is just and equitable to make any order altering an existing proprietorial arrangement. ... [89]  I have taken some time to outline the various legal principles, which will be applied in determining the competing claims of the parties in respect of the marital property. On any view, the husband has a claim to a significant proportion of this property given considerations of prospective factors can now only favour him. In addition, the claims of the estate turn on the moral obligations, which arise in respect of the late wife’s nominated beneficiaries, her grandchildren Ms F and Ms G. ...": Cottrell & Cottrell [2022] FedCFamC2F 704.

• "[52]  Taking into account the contributions of the wife to which I refer to below and the moral obligations that remain unsatisfied, I consider it still appropriate to make an order. ...": Ament and Ament [2010] FMCAFam 1344 -- see case.

• "[21]  I do not think that once the Court is satisfied of the prerequisite in s 79(8)(b)(i), it should then approach the matter simply by applying ss 79(4) and 75(2) of the Act. That would deprive s 79(8)(b)(ii) of any utility. In my view, that subsection requires the Court to take into account the death of one of the parties to the marriage and ask whether it is still appropriate to make an order effectively in favour of the beneficiaries of that party’s estate. A more restrained or limited approach should be taken, as supported by the obiter remarks of Gibbs CJ and Brennan and Wilson JJ in Fisher. That may mean, in practical terms, that what the court really looks to is the contributions based entitlement of the deceased party, which the surviving party has a moral obligation to meet, and to then ask whether that entitlement should be adjusted for s 75(2) factors relating to the surviving spouse, or for any other reason.": Cornell and Stokes [2008] FMCAFam 774.

• "[150]  Mr Mawson generally submitted to the court that there should be a finding of the husband's entitlement to benefit from his contributions and generally to provide a proper entitlement to his estate. He referred me to the decision in Menzies v Evans (1988) FLC 91-969 where the wife died before hearing. The presiding judge, Smithers J, held that the wife's estate should not be deprived of the benefit of her contributions to the marriage. Smithers J stated at 77,010 that [I]t would in my view be wholly inappropriate that the deceased should be deprived of the benefits of her contributions over so many years. [151]  Menzies was cited with approval by the Full court in Tasmanian Trustees Ltd and Gleeson (1990) FLC 92-156. Referring to Smithers J's decision in Menzies, Nygh J stated at 78,086: I wholeheartedly agree with the learned Judge in that case that the deceased has a prima facie moral entitlement to the share gained by contribution during his or her lifetime and, if this is so desired, to dispose of that share by will to persons who are strangers to the marriage." (my emphasis) [152]  In the present case, it is apparent that an assessment of s 75(2) factors would inevitably favour the wife, and this is what I have found. However it is proper and reasonable for any adjustment to be balanced on the particular facts and having proper regard to the husband's moral rights and entitlements.": Leggero & Jagger [2007] FamCA 659.

• "The second proposition I derive from this is that the wife's needs are large enough to justify an adjustment in her favour of the share to which the husband, had he lived in 1989, might have been entitled to by way of contribution. As I remarked in the course of argument, it would be rare for a court to deprive one of the spouses of the marriage of the entire share to which he or she might be entitled by reason of contribution, having regard to the needs of the other party. But, as I pointed out, whilst it might be rare, it does occur and the obvious example is a situation where the estate is very small, consisting of a modest former matrimonial home, where one spouse has no earning capacity and the other spouse is unwilling or unable to contribute to the support and maintenance of the spouse in possession of the house and any dependents. There is no absolute principle in this court that a party is not under any circumstances to be deprived of the fruits of his or her contribution, although it is proper to say, generally speaking, that the court should be reluctant to take that step. I consider that the proper approach in a matter such as this was taken by Smithers J in the case of Menzies v Evans , to which I have earlier referred. I wholeheartedly agree with the learned judge in that case that the deceased has a prima facie moral entitlement to the share gained by contribution during his or her lifetime and, if this is so desired, to dispose of that share by will to persons who are strangers to the marriage. But the facts of this case are quite different to those in Menzies v Evans. In Menzies v Evans , supra, the estate was more than ten times the size of the estate in this case. The husband in Menzies v Evans was of an extremely advanced age and his needs were small and adequately catered for out of the portion to which he was entitled by reason of contribution. In this case the estate is very small and the needs of the wife are overwhelming. Ultimately, as his Honour pointed out in his judgment at p 29, the power of the court pursuant to s 79(8)(b) is discretionary. Having regard to the facts and circumstances of this case, I cannot say that the conclusion reached by his Honour, that the wife's sole tenancy by reason of survivorship should not be disturbed, is an outcome which is manifestly unjust. In those circumstances I would dismiss the appeal.": Tasmanian Trustees Ltd & Gleeson (1990) 14 Fam LR 189, 193-4 (Nygh J).

• "[80]  In support of his contention that an adjustment of 10 per cent was inadequate, it was submitted on behalf of the husband that the Estate has no needs whereas the husband has the significant and ongoing responsibility to support and accommodate himself and the two children. It was submitted that the needs of a surviving spouse have a "decisive impact" and that an adjustment of 10 per cent was inadequate, especially given that the dollar value of the adjustment is only approximately $99,000. Counsel contended that the pool of property available for distribution in this matter is not large, and that as such there should have been a greater adjustment. In support of this contention counsel referred us to the decision of Tasmanian Trustees Ltd and Gleeson (1990) FLC 92-156 per Full court (Nygh J with whom Strauss and Baker JJ agreed). [81]  In that case, the husband died while judgment with respect to property settlement was reserved. The Full court recognised that the most obvious difference caused by the husband's death was the fact that the deceased no longer had any s 75(2) needs for the future, while the survivor continued to have such needs. While the Full court recognised (at 78,086) that the deceased had "a prima facie moral entitlement to the share gained by contribution during his or her lifetime and, if this is so desired, to dispose of that share by will to persons who are strangers to the marriage", the surviving wife's needs were found to be large enough to justify an adjustment in her favour of the share to which the husband might have been entitled to by way of contribution had he not died, in circumstances where the estate was very small and the wife's needs were "overwhelming". The trial judge had found it was no longer appropriate to make an order with respect to the former matrimonial home which the wife would retain by survivorship. [82]  Again, in Re Parrott v Public Trustee of NSW (1994) FLC 92-473 it was recognised (at 80,906) that: it is clear enough that the death of one party has a profound effect upon the balance of s 75(2) factors, as the Full court pointed out in Tasmanian Trustees Ltd and Gleeson (1990) FLC 92-156. [83]  However, although it is clear that when a spouse dies there are generally no s 75(2) factors that can be taken into account in favour of the estate, and that that should highlight the needs of the surviving spouse and the fact that they have to be met, it is equally apparent that that should not detract from the need to recognise the entitlement of the deceased spouse (which devolves onto that spouse's estate) arising from a consideration of the respective contributions of the parties.": Van der Linden & Kordell [2010] FamCAFC 157. 

• "[68]  Counsel for the respondent in closing submissions referred to the continuum of cases typified by the Tasmanian Trustees Ltd v Gleeson (1990) FLC 92-156 at one end and Menzies v Evans (1988) FLC 91-969 at the other, being the matter which was addressed in the decision of Re Parrott v Public Trustee (NSW) (1994) FLC 92-473. [69]  The issue in these cases involves the balancing of the prima facie moral entitlement of the deceased to the share gained by the contributions made during his lifetime and the disposition of that share to his chosen beneficiaries against the consideration of not only contributions but the needs of the surviving spouse, noting the absence of the needs factors with the estate. It also involves a consideration of amongst other things, the size of the estate and the age of the surviving spouse.": Bevan and Bevan and Anor [2012] FMCAFam 370.

Moral Claims - no scope to bring into statutory framework a non-legal consideration with no foundation in the Act

• "[53]  Section 79(8) allows proceedings to continue after one party’s death — it does not allow proceedings to sprout new appendages and evolve beyond what they were in that party’s lifetime, although this does not prevent new issues or cross-applications being raised within those proceedings.56 To this end s 79(8), particularly in subs (b)(i), requires demonstration that the proceedings ‘[retain] the character they had when instituted’.57 Insofar as Brennan J refers to ‘moral obligations’ and ‘moral claims’ above, the High Court in Stanford clarified that this is not to be understood as importing non-legal considerations with no foundation in the Act.58 The overarching question to be asked (and complied with under s 79(2)) is whether it is just and equitable for the court to make an order with respect to the parties’ property and, if so, the form that order should take if an order is still appropriate. It is not a question of whether ‘moral claims’ have been left ‘unsatisfied’ or ‘moral obligations’ left ‘unfulfilled’.": Jensen & Jensen [2022] FedCFamC2F 1190.

• "I do not believe that the submission on behalf of the husband is correct. When Brennan J said, “The death of a spouse will not always extinguish or satisfy the moral claims of the surviving spouse and children to which effect would have been given if the proceedings had been complted” he was referring to the situation that arises when the claim is against the deceased spouse, and not against the surviving spouse. Where a claim is continued on behalf of a deceased spouse, there is nothing in his Honour's judgment, in my view to suggest that the unsatisfied moral obligations arising out of the marriage, to which he referred, do not include recognition of matters such as contributions made by the deceased spouse. I do not believe that there are statements in any of the judgments in Fisher which suggest that claims of a spouse, which are sometimes characterised as moral claims, arising by virtue of matters stated in s 79 of the Act, and which include contributions to the acquisition and conservation of property, and contributions to the welfare of the family, are to be disregarded under s 79(8) upon the death of the spouse, unless children of the marriage stad to benefit by the claim. The contributions of a spouse are not set at naught, simply because, when he or she dies, the assets are left to grandchildren or strangers rather than to children.": Menzies & Evans (1988) 12 Fam LR 519, 527.

Other senses of 'moral obligation'

• "[97]  A party’s ill health does not, in itself, justify an adjustment under s 75(2)(a). It is not the task of a court with jurisdiction under pt VIII to engage in social engineering under s 79(4)(d)–(g) — that is, to serve any ‘moral’ or ‘charitable’ (but non-legal) ends outside the bounds of s 79.107 The Full Court in Beck & Beck (No 2) explained that   [i]t is the financial consequences of all of the relevant matters that are to be taken into account and the section is so drafted to effect this purpose while excluding matters of conduct in a moral or non-financial sense.": Jensen & Jensen [2022] FedCFamC2F 1190.

• "[105]  The husband has a singular personality. He is not, however, a liar. He is something of a pedant by nature. He was methodical in the presentation of his case and a stickler for exactitude to the point of literalism. He approaches matters in dichotomous terms. A time limit either applies or it does not. For obvious reasons, he is disinclined to help the wife. It is his view that she has no moral entitlement to his compensation payments as she, in effect, abandoned him when he was most in need. ... [111]  But, as it was he who took up the struggle, in the face of Ms Vince’s objections and against great odds, the victory must be his alone, given his perception that Ms Vince repudiated his struggle and abandoned him, when he needed her support the most. As such, in moral terms, she should not share in the fruits of his victory and it would be against his personal principles for her to do so.": Vince & Vince (No.2) [2021] FCCA 282.

• "[122]  A constructive trust does not rely upon a concept that a party has been unjustly enriched to the detriment of another but rather, far from any notion of fairness, justice, equity or moral entitlement, a court should intervene “to prevent the unconscientious denial by the legal owner of another parties’ rights”.: Ingles v Ingles [2019] FamCA 33.

FLA property settlement take priority over testamentary beneficiaries

• "[82]  As noted earlier, quite apart from the fact that the discharge of the deceased's "moral claims" to the respondent have "priority" over those of testamentary beneficiaries of the estate of the deceased, in this case there was no evidence of any facts or circumstances which might, howsoever viewed, have fallen within the ambit of s 75(2)(e)(ii) or s 75(2)(e).": Smythe & Smythe [2007] FamCA 1212.

• "Section 79(8) does not confer jurisdiction on the Family Court to entertain proceedings commenced after the death of one of the parties to the marriage. The proceedings to which it relates are proceedings commenced between the parties to a marriage with respect to the property of those parties or either of them arising out of the marital relationship or otherwise falling within para (ca) of the definition of “matrimonial cause” in s 4(1) of the Act. The proceedings must have been a matrimonial cause commenced pursuant to s 79(1). The death of a spouse will not always extinguish or satisfy the moral claims of the surviving spouse and children to which effect would have been given if the proceedings had been completed. Section 79(8) empowers the Family Court to give effect to the moral claims made in respect of the property of the spouses which was made available to answer those claims by the commencement of the proceedings, provided “it is still appropriate to make an order with respect to property” (s 79(8)(b)(ii)). That qualification on the power, coupled with para (ca)(i) of the definition of “matrimonial cause”, ensure that the jurisdiction is exercised only in cases where the moral obligations arising out of the marriage remain unsatisfied. Section 79(8) provides machinery for the discharge of those moral obligations in priority to any rights in the property of a party to a marriage which arise by testamentary disposition of that party's property or by any other devolution of that property on that party's death. That is a law which governs an incident of marriage in that it provides the machinery for enforcing the moral obligations with respect to property arising from a spouse's marital relationship. It is a law with respect to marriage. That is not to say that the exercise of the jurisdiction under s 79(8) is governed by precisely the same considerations as govern the making of orders under a Testators’ Family Maintenance Act, much less to suggest that there is any inconsistency between s 79(8) and legislation of that kind: see In the Marriage of Smith (1986) 60 ALJR 508 at 519; ; 66 ALR 1, at 21–2 However, there will be occasions when an order made under s 79(8) will satisfy or go towards satisfying a moral obligation which might otherwise have warranted the making of an order or an order in a larger amount under Testators’ Family Maintenance legislation. It follows from what I have written that the validity of s 79(8) would not be affected if it related to the continuation of proceedings after both spouses had died provided the proceedings were being carried on to obtain an order satisfying the moral obligations owed to their children. But it is clear from the context of s 79(8) that “either party” should not be construed as both parties. The provisions of para (a) show that the sub-section is intended to operate when there is but one “deceased party” by or against whose legal personal representative the proceedings may be continued.": In the Marriage of Fisher (1986) 161 CLR 438 (Brennan J). 

Double Dipping - FLA and Succession

• "[109]  Fifthly, these considerations also undermine the Administrator’s argument that the wife is somehow “double dipping.” This submission is rejected. The wife has rights under both the Family Law Act and the Succession Act. She is not obliged to elect between them in some way. The rights under the Succession Act arise as a matter of law, no exercise of discretion is involved. It seems likely that the wife’s entitlements under the Succession Act should, at Final Hearing, be taken into account as a species of property or financial resource pursuant to s 75(2) and this would affect the nature of any just and equitable order in these proceedings. Although no final view can be formed about such a possibility at this stage, it would likely address any perceived problem of “double dipping”.": Pretswell (deceased) & Pretswell [2019] FamCA 395.

Relation to Stanford and elderly in care homes in relationships

• Taylor & Taylor [2017] FCCA 125.

[B] Effect of Property Settlement under the Family Law Act 1975 (Cth) on Family Provision Claims (State and Territory)

• Former defacto, former spouse - Property Settlement - effect of, on Family Provision Claim: 

> "[128]  One matter of significance is whether the claimant and deceased finalised their financial relationship at the time of the divorce or subsequently, whether by agreement or by means of court orders (as occurred in the present case after contested hearings). As Dijkhuijs shows, a final property settlement is not necessarily an absolute bar to a family provision application being considered on its merits, but in most cases such a settlement, if otherwise unimpeachable, is likely to terminate any obligation on the deceased to make testamentary provision for his or her former spouse.": Lodin v Lodin [2017] NSWCA 327.

• Lodin v Lodin [2017] NSWCA 327 -- BFA. 

• Neil v Jacovou [2011] NSWSC 87 -- pre-marriage BFA. An order for provision was made in this case involving a pre-marriage BFA, a 5 year marriage, and a child of the marriage -- a BFA made before marriage will not likely be effective to bar a family provision claim - likely because of change in circumstances since marriage and (in)adequacy of provision assessed at time of death being the grounds for a FP claim.

[C] Family Provision in Australia

• De Groot's, Lexis: <https://dokumen.pub/qdownload/family-provision-in-australia-fifth-edition-9780409345346-0409345342.html> text.  

[D] Family Provision Claims

Effect of Family Provision Order on Estate Administration

• "[51] Thus, the applicant in favour of whom a family provision order is made, receives that benefit as the result of the creation of rights pursuant to the making of the order. That result is reached because the order takes effect as if it had been made in a codicil to the will of the deceased: also see, Union-Fidelity Trustee Co of Australia Ltd v Montgomery (1976) 1 NSWLR 134, at p 141; McLeod v Johns (1981) 1 NSWLR 347, at p 349. [52] In addition, as was pointed out in Official Receiver in Bankruptcy v Schultz [1990] HCA 45 ; (1990) 170 CLR 306, at 315–316 (dealing with s 41 Succession Act 1981 (Qld): The wide powers conferred by s 41 and the manner in which subs (10) is expressed strongly suggest that the effect of an order under the section is not to change the benefits to be expected from the right to due administration arising pursuant to the will, but to superimpose upon the duty of due administration a judicial order made pursuant to statute. In other words, a new and independent obligation is created which has an impact upon the way in which the executor administers the estate pursuant to his or her existing duty, by compelling him or her to comply with the terms of the court’s order. Each beneficiary’s right to due administration is made subject to the terms of the order in the sense that the order governs the executor’s actions to the exclusion of any inconsistent direction contained in or derived from the will. [53] Thus, an applicant who obtains a family provision order has the right to seek orders giving effect to the family provision order against the executor or administrator of the deceased’s estate to whom probate or administration has been granted because of the effect of s 72. As a person then beneficially entitled to part of the deceased’s estate, he or she does not have a proprietary interest in the property which is the subject of the family provision order but possesses a right to have the estate duly administered: Commissioner of Stamp Duties (Qld) v Livingston [1964] UKPCHCA 2 ; (1964) 112 CLR 12 ; (1965) AC 694 .": Wheat v Wisbey [2013] NSWSC 537.

Contracting out?

• Contracting out?: no: "[45] In Barns v Barns,[20] the High Court recently affirmed that parties cannot contract out of the rights conferred by the Act. On Mr Hills' behalf, it was argued that there are suggestions in the judgments in this case that an agreement by the parties as to their testamentary expectations is irrelevant to the exercise of the discretion to order further provision under the Act. Even the most cursory reading of the judgments in Barns v Barns shows that this argument is without substance.  There is no suggestion in the authorities that an agreement reflecting the mutual intentions and expectations of the parties, as expressed in the pre-nuptial agreement in this case, should not have a bearing on the evaluation which must be made as to whether the provision made for an applicant in the position of Mr Hills falls short of the adequate provision for his proper maintenance and support.  The view that such an agreement is relevant to that evaluation is supported by Callinan and Heydon JJ in Vigolo v Bostin.[21] [46] In this case, the voluntary statement of the parties of their mutual intentions and expectations in a form intended to be binding affords a reliable conspectus of the totality of the relationship of the parties and of their respective relationships with others who have a claim on their bounty. In my opinion, the court should have regard to such a voluntary statement by the parties of their intentions and expectations, unless there is good reason for the court to conclude that these intentions and expectations would not have shaped the thinking of the wise and just testator or testatrix postulated by the Act. There may be cases, for example, where the length of time and change in circumstances between the making of a pre-nuptial agreement and the death of one of the parties is such that the pre-nuptial agreement is no longer a true reflection of the parties' relationship. Or it may be that the evidence shows that the execution of the pre-nuptial agreement was procured by economic or other pressure. In this case, there is no such evidence, and the circumstances to which I have referred confirm that there are, in truth, good reasons why the pre-nuptial agreement should be regarded as an accurate reflection of the thinking of a wise and just wife in relation to the proper provision that should have been made from her estate for Mr Hills. [47] As Barwick CJ said in White v Barron:[22]  "The question whether the appellant was left without adequate maintenance must be answered at the date of death."  In White v Barron, Mason J said: "The question whether the testator left the appellant widow 'without adequate provision' for her 'proper maintenance' was to be determined by the primary judge by reference to circumstances as they existed at the date of the testator's death. Once this question was answered in the affirmative, it was for the court to exercise its discretion to order adequate provision for proper maintenance for the appellant by reference to circumstances as they existed at the date of the order. See generally Coates v National Trustees Executors and Agency Co Ltd ((1956) 95 CLR 494). There Dixon CJ observed that in determining the initial question of jurisdiction the Court must look to what is 'necessary or appropriate prospectively from that time', that is, the date of death, including events which are contingent as well as those which are certain or likely. Advantage may be taken of hindsight so long as the subsequent occurrences fall within 'the range of reasonable foresight' ((1956) 95 CLR at 508)."[23] [22]         (1980) 144 CLR 431 at 437. [23]         (1980) 144 CLR 431 at 441 (citations footnoted in original).": Hills v Chalk [2008] QCA 159.

• But see, release agreements in NSW: 

> s 95, Succession Act 2006 (NSW).

> "[69,276] ... The family provision legislation in all Australian jurisdictions except New South Wales is silent on the question whether one person can by contract or other arrangement with another person bind himself or herself not to seek family provision from that other person's deceased estate. The law governing this question in jurisdictions other than New South Wales was laid down in Lieberman v Morris (1944) 69 CLR 69; [1944] ALR 150 . The High Court held that a person who has covenanted with a person not to seek testator's family maintenance (nowadays more commonly called family provision) may, in spite of the covenant to the contrary, seek and be granted provision. In these jurisdictions, therefore, an attempt to contract out of family provision is ineffective, though no doubt the court would take the contract into account as one of the circumstances of the case, in considering whether to make an order and what order to make.1 1. The New South Wales provision is dealt with in [69,279], and see Hardingham, Neave and Ford The Law of Wills and Intestacy in Australia and New Zealand, 2nd ed, Law Book Company, 1989, para 3517. ... [69,279] ... Spouses dissolving their marriage (usually by divorce) may wish to finalise all the property relationships between them. Section 87 of the Family Law Act 1975 (Cth) empowers the Family Court to approve ‘maintenance agreements’ entered into in substitution for rights under the Act. The position in New South Wales is governed in part by s 95 of the Succession Act 2006 (NSW), which provides that a person may execute a release of rights to family provision; such a release is, however, ineffective unless it is approved by the Supreme Court. It was held by the High Court in In the Marriage of Smith (1986) 161 CLR 217; 66 ALR 1; 10 Fam LR 769; 60 ALJR 508 that the Family Court did not have jurisdiction to approve a release of rights to family provision under s 31 of the now repealed Family Provision Act 1982 (NSW); this could only be done by the New South Wales Supreme Court. In all other jurisdictions, since the position is governed by Lieberman v Morris, no release of rights is available on dissolution of the marriage or at any other time during the life of the person leaving the estate.1 Where the client testator has unfulfilled contractual obligations in respect of a child, consideration should be given to the establishment of a testamentary trust for the specific purpose of carrying out those obligations.": 'Family Provision: Testator's Family Maintenance' in Wills Probate & Administration Vic (LexisNexis, 2019). 

• Family Provision (NSW) and Family Law Act 1975 (Qld) - Releases in Financial Agreement: "[68] The agreement was declared to be a Financial Agreement pursuant to s 90B of the Family Law Amendment Bill 1999 and a Domestic Relationship Agreement and/or Termination Agreement pursuant to Pt 4 of the Property (Relationships) Act 1984. Partly at the court’s invitation the parties advanced analysis of the effect of the pre-nuptial agreement under Family Law Act ss 90B and 90G. The plaintiffs submitted that the structure of Family Law Act s 90B (2) and (3) also support the conclusion that the release in cl 3.2 should be construed as only operating upon the breakdown of marriage. But this argument is also not persuasive. The reference to the Family Provision Act in the pre-nuptial agreement means that the agreement is intended to have operation independently of the Family Law Act . And the words of the pre-nuptial agreement are intractable that the release operates whether or not there is a marital breakdown. Otherwise the Family Law Act jurisprudence in relation to agreements under ss 90B & 90G of that Act is not material to the court’s present task under the Family Provision Act. ...": Neil v Jacovou [2011] NSWSC 87.

• Dark v Dark [2016] NSWSC 1223, [114] et seq.

• Jurak v Latham [2023] NSWSC 1318, [201] et seq.

• Former defacto, former spouse - Property Settlement - effect of, on Family Provision Claim: 

> "[128]  One matter of significance is whether the claimant and deceased finalised their financial relationship at the time of the divorce or subsequently, whether by agreement or by means of court orders (as occurred in the present case after contested hearings). As Dijkhuijs shows, a final property settlement is not necessarily an absolute bar to a family provision application being considered on its merits, but in most cases such a settlement, if otherwise unimpeachable, is likely to terminate any obligation on the deceased to make testamentary provision for his or her former spouse.": Lodin v Lodin [2017] NSWCA 327.

> "[173]  The answers to these questions must be reached, in accordance with s 59(1)(b) of the Act, “having regard to all the circumstances of the case (whether past or present)”. Having regard to those circumstances, I was not satisfied that the Plaintiff had established any factors which warrant the making of the application. Amongst other things, she and the deceased had engaged in a deliberate, and systematic, division of their jointly held assets and liabilities, and had agreed, no doubt based upon the legal advice obtained, on a final financial settlement. There was simply insufficient evidence to satisfy me that the financial settlement that was reached was impeachable assuming, as submitted, establishing that was a factor which warranted the making of the application. Their relationship had ended completely before the property settlement and there was no subsequent relationship of any kind. Their conduct after separation clearly demonstrated that their marriage had ended more in anger than sorrow, that each regarded the separation as permanent, which permanence was fortified by the divorce order subsequently made, following which the property settlement was entered into. It is clear that they did not remain on close terms. [174]  Once the property adjustment orders were made, each was no longer restrained in dealing with his, or her, assets, respectively, by any obligation to consider the financial position of the other. Nothing more was required by means of a testamentary disposition in favour of the other. Any obligation of either to make any testamentary provision for the other’s maintenance or advancement in life had ended. There was no reason for the deceased to engage his attention, or bounty, thereafter, in relation to the Plaintiff and in my view there was no reason why the Court should take any action either in making any order for provision for her either. [175]  Similarly, when one considers the question of factors which warrant the making of the application according to community standards, the same conclusion is reached. Furthermore, the three children of the deceased, the chosen objects of the testamentary beneficence of the deceased, would, generally, be regarded as the natural objects of testamentary recognition by their father to the exclusion of a former spouse with whom he had a property settlement. Each, as a child of the deceased, has a significant competing claim on the bounty of the deceased. [176]  It followed that the Court was not able to make an order for provision. It was, therefore, unnecessary for me to make findings about the Plaintiff’s financial resources at the date of the trial. In the circumstances, it is unnecessary to deal with whether the provision made for the Plaintiff in the Will of the deceased is inadequate and whether an order for provision ought to be made for her.": Brindley v Wade (No 2) [2020] NSWSC 882.

> "[27]  Sackville AJA also observed at [128] that as “Dijkhuijs shows, a final property settlement is not necessarily an absolute bar to a family provision application being considered on its merits, but in most cases such a settlement, if otherwise unimpeachable, is likely to terminate any obligation on the deceased to make testamentary provision for his or her former spouse”.": Squire v Squire [2019] NSWCA 90.

> Rogic v Samaan [2018] NSWSC 1464, [137]. 

> no property settlement - FP ordered: Stockwell v Beaumont; O’Donnell v Beaumont [2019] NSWSC 1811, [190]-[192].

> "In those States and Territories where a former spouse is an eligible applicant there are in general no different criteria applied to a determination of the claim — the standard being that of proper or reasonable provision for maintenance, education or advancement. The same considerations and the same powers apply. What has been said about the claim of a spouse in New South Wales applies also to a former spouse. In the case of a former spouse, however, the potential for overlap with the field of operation of the Family Law Act is considerably greater. Yet no attempt has been made to resolve the conflict or to define or rationalise the respective fields of operation and policies of the Federal and State Acts. For example, there is no express provision in any of the Testator's Family Maintenance Acts, including the New South Wales Family Provision Act 1982, to say how the court should have regard to any order made during the joint lives of the parties or in proceedings which are continued after the death of either party. The matter has been left to decisions, which in some cases have referred to special difficulties which arise in dealing with claims by former spouses: Re Adams [1967] VR 875 at 881 ; In the Estate of Brooks (1979) 5 Fam LR 528 ; 22 SASR 398 , In re Preece [1947] SASR 134 ; Re Cutts [1969] VR 254 . By way of contrast the English law contained in the Matrimonial Causes Act 1973 and the Inheritance (Provision for Family and Dependants) Act 1975 contains a comprehensive code for dealing with financial provision between living parties to a marriage and between the survivor and the estate, whether or not the marriage has been dissolved. Upon divorce a spouse may claim financial provision, including either periodic or lump sum maintenance and the transfer or settlement of property. The issues regarding property are dealt with by a broad discretion which takes account of contributions, means and needs (and conduct). These provisions are comparable with the Family Law Act s 79. Where a marriage ends in death the survivor is entitled to have his or her claim considered in accordance with provisions as broad as those which apply on divorce, and to claim a share in the estate on the basis of those principles. The court is specifically directed to have regard to the provision which the applicant might reasonably have expected to receive if on the day on which the deceased died the marriage, instead of being terminated by death, had been terminated by a decree of divorce (s 3(2)). Where the survivor is a divorced spouse then if questions of financial provision have already been determined during joint lives, he or she is limited to a maintenance claim. However, where there has been no application for or no determination of the application for financial provision on the broader bases just referred to, the survivor is treated as if there had been no divorce (s 14); in other words the application will be treated on the same broad basis as that which applies to the surviving spouse. Where a property or maintenance order had been made during joint lives, this will of course be relevant. In Re Fullard [1981] 2 All ER 796 it was held that the financial result of the divorce was plainly relevant and that as the deceased had regarded matters as settled by the parties’ agreement and as his assets were small it was not reasonable to expect him to make further provision. If there is a continuing maintenance order the survivor can choose whether to apply directly for family provision or for a variation of maintenance. The court has comprehensive powers to deal with either matter in accordance with the general provisions applicable to maintenance claims against the estate. The Court at the time of the divorce can, where the parties agree, bar any claim to provision from a deceased party's estate ... There are reasons for concluding that the Commonwealth has not evinced any intention to cover this field in a manner which would render inoperative the State TFM laws:— (1) It has not been considered in any decided case that parties who have had a maintenance agreement approved under the Family Law Act or its predecessor are precluded from bringing claims under State TFM laws. (It is, however, conceded that novelty alone is not an answer to the claim.) (2) When the Family Law Act was enacted there was no provision in any State or Territorial law which would have allowed parties to agree during their joint lives to exclude the operation of TFM laws, whether or not with the sanction of a court. In the absence of express statutory provision, such as exists in England (s 15(1)) and New South Wales (s 31) parties have never been permitted to contract out or waive TFM entitlements in any Australian State or Territory, in New Zealand or in England. Relevant cases are: In re Howard [1925] SR(NSW) 189 ; In re Willert [1937] QWN 35 ; In re Pearson [1936] VLR 355 ; In re Patrick (1936) 53 WN(NSW) 34 ; Lieberman v Morris (1944) 69 CLR 69 ; See also In the Estate of Brooks (1979) 5 Fam LR 528 ; 22 SASR 398 . It would be reasonable to conclude that a general change of this significance would require clear, express legislative provision. The general intention to provide parties with a way of determining finally their rights and obligations with respect to financial matters falling within the Family Law Act is not a clear statement of such an intention ...": In the Marriage of J G and RK J Smith (1984) 9 Fam LR 675, 695-6, 700.

> "[44] The Court will approve the release. The Court is required to take into account all the circumstances of the case: s 95(4). The Court has accordingly allowed all the evidence to be read in the proceedings relevant to the release and has considered it. Section 95(4) identifies a number of more specific mandatory considerations, with which these reasons now deal. These were the subject of Mr O’Sullivan’s submissions. [45] Ms Plosz clearly receives some benefit for the release. The $10,000 she receives in part exchange for her release is considerably less than her best possible outcome in the proceedings. But the evidence already before the Court shows that that her claim to be the deceased’s de facto wife is highly contestable. Mr O’Sullivan gave Ms Plosz advice as counsel about the release. He has indicated to the Court that he has advised Ms Plosz that it is in her interest to sign the deed including the release. Mr O’Sullivan was acting on a direct access basis. The Court does not require him to file evidence about the advice that he gave to his client. His statements to that effect from the Bar table were sufficient. [46] I am satisfied that Ms Plosz has been adequately advised and that the release is prudent in the circumstances. The release is also fair and reasonable. Were Ms Plosz to lose these proceedings she would be exposed to a substantial claim for costs, a risk that the settlement will avoid. I am also satisfied that she has taken independent advice in relation to the release. Moreover, it is clear from what Mr O’Sullivan has said that she has given due consideration to that advice. In the circumstances the release is approved.": Re Estate of Late Melegh [2016] NSWSC 249.

• Court's power not to make a consent order - family provision - Harris v Caladine: 

> Morrison v Abbott [2012] NSWSC 320.

> Sergent v Glass (No 2) [2018] NSWSC 1100.

Statutiory Framework - QLD - Issues to be Determined

• "[54] The approach taken in McEwan Shaw v Shaw77 and more particularly in the New South Wales cases, to which reference was there made, is clearly germane to the discrete issue, as it arises under the Queensland legislation and even more so because the issue of dependency is treated separately from the assessment of adequacy of testamentary provision and as a condition precedent to an entitlement.": McElligott v McElligott [2014] QDC 178.

Maintained or Supported - issue of Dependency

• Qualitative assessment on facts - value judgement of moral claim and moral duty: "[54] The approach taken in McEwan Shaw v Shaw77 and more particularly in the New South Wales cases, to which reference was there made, is clearly germane to the discrete issue, as it arises under the Queensland legislation and even more so because the issue of dependency is treated separately from the assessment of adequacy of testamentary provision and as a condition precedent to an entitlement. [55] Notwithstanding that for s 40 of the Succession Act 1981, substantial rather than whole maintenance or support may suffice, as a matter of the application of this requirement in the context of prevailing community standards and in the context of the provision being a condition precedent to the application of a test which was described by Gleeson CJ in Vigolo v Bostin,78 as requiring a value judgment based on considerations of moral claims and moral duty, a requirement of directness of such dependency should be recognized. The indirectness of any maintenance or support, such as is evident here and implicit in an arrangement where the children remained in the care of their ordinary primary caregiver, their mother and who otherwise herself provided substantially for their maintenance or support, means that it should be concluded that any such maintenance or support, as was provided by the deceased for the care of the children, was provided as much to and for the benefit of their mother and is therefore most unlikely to satisfy the requirements of s 40. It can also be noted that such a conclusion is consistent with the approach taken in Lohse v Lewis,79 in that substantial maintenance or support, requires something that may be described as being “in the main“ or “as to the greater part“. [56] It should therefore be concluded that the purported claim for maintenance for these children is, at the least, most unlikely to succeed, if not doomed to fail. However, it is unnecessary to be more categorical for the reasons to follow. [57] While the Executor is by his application, the moving party, a fundamental obstacle to the pursuit of the maintenance application for the children, is the necessity for the direction or leave of the court for it to proceed, pursuant to s 41(8) of the Succession Act 1981. An unfettered discretion is to be exercised and relevant considerations include not only any adequate explanation for delay but also an assessment of the merit or prospects of success of the application and whether there will be prejudice to other beneficiaries. An important point is that this being a substantive rather than merely procedural time limit, there is an onus on an applicant to establish sufficient grounds for such a direction.": McElligott v McElligott [2014] QDC 178.

• Living together, separate finances, but joint intent to apply savings toward future plans: "Headnotes ... Held, granting the application: (1) That, if savings were being accumulated for the benefit of two parties out of the income of one party, there was support or maintenance being provided to the other if the moneys were to be used partly or wholly for the benefit of that other in the event that the relevant plans came to fruition. (2) That each of the applicant and the deceased was contributing to the support of the other as a result of living together in a household to whose finances both made contributions and the applicant, therefore, was a dependant of the deceased ... Kneipp J ... I have had some difficulty in this matter on the question whether the applicant was a dependant of the deceased as defined in s.40 of the Succession Act 1981–1987. She was a dependant if, among other things, she was being wholly or substantially maintained or supported (otherwise than for valuable consideration) by the deceased at the time of his death. The problem is this. Suppose an applicant and the deceased were until his death both working, earning substantially the same amounts of income and contributing to a common monetary fund and sharing expenses equally. Can it be said in those circumstances that either is supporting or maintaining the other? If one gives a money value to the various contributions and sets them off, then it can be said that neither in real terms is supporting the other. Each is supporting herself or himself. I have found no relevant authority on this problem, but there did come to my mind an authority from a different context which suggests — and it is merely a matter of common sense — that if two persons are living together, sharing outgoings such as rent and electricity, then the amount which they will spend on their joint upkeep should not be twice as much as would be spent by either living alone. In those circumstances, it may be said that each is contributing to the support or maintenance of the other. The statement to which I refer is contained in a decision of Devlin J. in a fatal accidents case, Burgess v. Florence Nightingale Hospital [1955] 1 All E.R.511. The present case is not quite so simple. The parties had come to an agreement as to the dispositions of their respective incomes. The applicant spent the whole of her income on groceries, electricity, the telephone, and on her own personal expenses. The deceased paid the rent of the premises in which they were living and paid for such maintenance as was effected on them. He also paid for casual outgoings, which I need not describe. The deceased, apparently, for some years before his death lived very frugally, and after the agreed payments out of his income he had balances which by agreement between the parties were banked in investments which were in his name but which were intended in due course to be used for the establishment of a jointly owned home. The moneys which he accumulated in investments, as I have said, were in his name and eventually they formed a substantial part of his small estate. If one sets off the contributions and leaves it at that, then it would seem that, if anything, the applicant was supporting the deceased and that he was not supporting her. However, I do not think that it is necessary that the provision of support or maintenance is necessarily confined to the provision of support or services or the like. It seems to me that if savings are being accumulated for the benefit of two parties, and if the savings come out of the income of one party, there is support or maintenance being provided to the other if the moneys are to be used partly or wholly for the benefit of that other in the event that the relevant plans come to fruition. In the present case, having regard to the agreement between the parties as to the dispositions of their respective incomes, it seems to me to be at least arguable that the applicant might have claimed a proportion of the moneys which had been invested by the deceased in accordance with the agreement between them. In the result, it seems to me that one should take an overall view of the situation, and in these circumstances I think that one can appropriately take the view that each was contributing to the support of the other as a result of their living together in a household to whose finances both made contributions. I therefore find, although I must confess I have found the matter to be one of considerable difficulty, that the applicant was a dependant of the deceased. There is no doubt about the merits of the application. The estate is small. I think that its value is around $30,000, and that will be substantially reduced by deduction of the costs of this application. I think that the only appropriate order is that the applicant should receive the whole of the estate. I order that provision for the applicant, Violet Elizabeth Jorgensen, be made out of the estate of the deceased, Michael John Cobb, by the payment or transfer to the applicant of the whole of the estate of the said deceased. I order that the costs of all parties, including the costs of the administrator ad litem be taxed as between solicitor and own client and paid out of the said estate.": Re Cobb [1989] 1 Qd R 522.

• Former de facto wife with child of the relationship - dependance and support, successful, novel application, dependant under s 40 of the Act: Snodgrass v Estate of McLaren [2017] QSC 132.

• Adult child dependant - principles: "[128] In relation to a claim by an adult child, the following principles are useful to remember: (a) The relationship between parent and child changes when the child leaves home. However, a child does not cease to be a natural recipient of parental ties, affection or support, as the bonds of childhood are relaxed. (b) It is impossible to describe in terms of universal application, the moral obligation, or community expectation, of a parent in respect of an adult child. It can be said that, ordinarily, the community expects parents to raise, and educate, their children to the very best of their ability while they remain children; probably to assist them with a tertiary education, where that is feasible; where funds allow, to provide them with a start in life, such as a deposit on a home, although it might well take a different form. The community does not expect a parent, in ordinary circumstances, to provide an unencumbered house, or to set his or her children up in a position where they can acquire a house unencumbered, although in a particular case, where assets permit and the relationship between the parties is such as to justify it, there might be such an obligation: McGrath v Eves [2005] NSWSC 1006; Taylor v Farrugia [2009] NSWSC 801. (c) Generally, also, the community does not expect a parent to look after his, or her, child for the rest of the child’s life and into retirement, especially when there is someone else, such as a spouse, who has a primary obligation to do so. Plainly, if an adult child remains a dependent of a parent, the community usually expects the parent to make provision to fulfil that ongoing dependency after death. But where a child, even an adult child, falls on hard times, and where there are assets available, then the community may expect a parent to provide a buffer against contingencies; and where a child has been unable to accumulate superannuation or make other provision for their retirement, something to assist in retirement where otherwise, they would be left destitute: Taylor v Farrugia, at [58]. (d) If the applicant has an obligation to support others, such as a parent’s obligation to support a dependent child, that will be a relevant factor in determining what is an appropriate provision for the maintenance of the applicant: Re Buckland (dec’d) [1966] VR 404 at 411; Hughes v National Trustees Executors and Agency Co of Australasia Ltd [1979] HCA 2 ; (1979) 143 CLR 134 at 148; Goodman v Windeyer at 498, 505. But the Act does not permit orders to be made to provide for the support of third persons that the applicant, however reasonably, wishes to support, where there is no obligation of the deceased to support such persons: Re Buckland (dec’d)at 411; Kleinig v Neal (No 2) [1981] 2 NSWLR 532 at 537; Mayfield v Lloyd-Williams, at [86]. (e) There is no need for an applicant adult child to show some special need or some special claim: McCosker v McCosker; Kleinig v Neal (No 2) at 545; Bondelmonte v Blanckensee [1989] WAR 305; and Hawkins v Prestage (1989) 1 WAR 37, per Nicholson J at 45. (f) The adult child’s lack of reserves to meet demands, particularly of ill health, which become more likely with advancing years, is a relevant consideration: MacGregor v MacGregor [2003] WASC 169 (28 August 2003) at [179]–[182]; Crossman v Riedel [2004] ACTSC 127 at [49]. Likewise, the need for financial security and a fund to protect against the ordinary vicissitudes of life, is relevant: Marks v Marks [2003] WASCA 297 at [43]. In addition, if the applicant is unable to earn, or has a limited means of earning, an income, this could give rise to an increased call on the estate of the deceased: Christie v Manera [2006] WASC 287; Butcher v Craig [2009] WASC 164, at [17]. (g) The applicant has the onus of satisfying the court, on the balance of probabilities, of the justification for the claim: Hughes v National Trustees, Executors and Agency Co of Australasia Ltd, at 149. (h) Although some may hold the view that equality between children requires that “adequate provision” not discriminate between children according to gender, character, conduct or financial and material circumstances, the Act is not consistent with that view. To the contrary, the Act specifically identifies, as matters that may be taken into consideration, individual conduct, circumstances, financial resources, including earning capacity, and financial needs, in the court’s determination of an applicant’s case. (i) There is no obligation on a parent to equalise distributions made to his or her children so that each child receive benefits on the same scale as the other: Cooper v Dungan at 542. In Blore v Lang (1960) 104 CLR 124, Fullagar and Menzies JJ said, at 135: The measure to be applied is not what has been given to one, but what the other needs for his or her proper maintenance, giving due regard to all the circumstances of the case … The … legislation [is] for remedying, within such limits as a wide discretion would set, breaches of a testator’s moral duty to make adequate provision for the proper maintenance of his family — not for the making of … a fair distribution of … [the] estate … Equality is not something to be achieved by the application of the Act, although in some cases equality may set a limit to the order to be made — for instance, where there is not enough to provide proper maintenance for all entitled to consideration whose need is the same. ...": Wheat v Wisbey [2013] NSWSC 537.

Adequate Provision

• Includes any promises: "[110] And by the comments of Callinan and Heydon JJ in Vigolo v Bostin, at 230–231: We do not therefore think that the questions which the court has to answer in assessing a claim under the Act necessarily always divide neatly into two. Adequacy of the provision that has been made is not to be decided in a vacuum, or by looking simply to the question whether the applicant has enough upon which to survive or live comfortably. Adequacy or otherwise will depend upon all of the relevant circumstances, which include any promise which the testator made to the applicant, the circumstances in which it was made, and, as here, changes in the arrangements between the parties after it was made. These matters however will never be conclusive. The age, capacities, means, and competing claims, of all of the potential beneficiaries must be taken into account and weighed with all of the other relevant factors. ...": Wheat v Wisbey [2013] NSWSC 537.

• adapted to confirm with community standards: "[122] Yet, in considering the question, the nature and content of what is adequate provision for the proper maintenance, education and advancement in life of an applicant, is not fixed or static. Rather, it is a flexible concept, the measure of which should be adapted to conform with what is considered to be right and proper according to contemporary accepted community standards: Pontifical Society for the Propagation of the Faith v Scales at 19; Walker v Walker (NSWSC, Young J, 17 May 1996 unreported); Vigolo v Bostin at 199 and 204; Stern v Sekers; Sekers v Sekers [2010] NSWSC 59. How those community expectations or standards are determined cannot be explained other than by reference to the Act: Andrew v Andrew at [36]; 664. [123] In all cases under the Act, what is adequate and proper provision is necessarily fact specific.": Wheat v Wisbey [2013] NSWSC 537.

Effect of Life Tenancy, Mere Right to Reside, on Family Provision

• "It is not uncommon for a mere right of residence to be given. Such rights can on occasion take curious and eccentric forms such as came before the High Court in Hurley v Hurley (1947) 75 CLR 289; [1947] ALR 340; (1947) 21 ALJR 446 . A mere personal right of residence for life is an interest, though not an estate in land. It would, therefore, seem that there is little advantage in giving a mere right of residence and, if the testator desires to provide for a surviving spouse for life, it is preferable for this to be done by the creation of a legal or equitable life estate, unless the right is confined to a small part of a larger whole: see [69,510]. If a right of residence is created it does not give the beneficiary the right to create subordinate interests: Leese v Davis (1951) 71 WN (NSW) 39 , and is liable to termination by abandonment: Hurley v Hurley, above. The mere right of residence is, therefore, an unsatisfactory method of providing for a spouse as, if the spouse is compelled to give up the right by for example sickness, he or she cannot obtain support by getting income from the property in which the right of residence has been given. On the other hand, it may be the only effective means if the right is to be confined to a single room. Precedent 20.620 may be appropriate here. See, however, Moore v Moore (CA(NSW), Hurtley, Glass and Samuels JJA, No 154/83, 16 May 1984, unreported, BC8400340), which approves the italicised passage. The decision in Moore shows that the traditional form of right of occupation may well be successfully challenged under family provision legislation as being too restrictive and giving insufficient security. In this case, the court granted the widow a life interest in the property in which, under the will, she had been granted a right of residence during her life, a right which would have been lost if she had been unable to continue to reside in the property. The court further ordered that the trustee must, on the widow's direction, sell or let the property and that the proceeds of sale be re-invested during her lifetime in a residence or in trustee securities. Precedent 20.615 has been drafted to take into account the judicial views expressed in this case and is drafted to create a right of occupation which will operate satisfactorily in a wide variety of situations, and to ensure for the occupant security and appropriate accommodation for life.1 Moore 2 dealt with a family provision application and, like all such applications, was decided on the particular circumstances of the case. Precedent 20.615 is elaborate and can be adapted so as to express the testator's wishes. ‘Ceased to reside permanently’ it has held in Re Coxen; McCallum v Coxen [1948] Ch 747 ; [1948] 2 All ER 492 , that the condition ‘ceased permanently to reside’ was sufficiently certain and could be readily determined by the trustees. The wording of cl 6 of Pr 20.615 follows to some extent the wording in Re Coxen; McCallum v Coxen. 1. Precedent 20.615 cl 10 is based on Halsbury's Laws of England, 4th ed, Vol 39, para 550. 2. See Moore v Moore (CA(NSW), Huntley, Glass and Samuels JJA, No 154/83, 16 May 1984, unreported, BC8400340)": '[69,507] Mere right of residence and its family provision implications' in Wills Probate & Administration Vic (LexisNexis, 2019). 

> Pr 20.615: "... SCHEDULE 1 1. (1)Subject to the succeeding provisions of this schedule my executors must allow [name] to live in [my principal residence at my death or other appropriate description] (‘the residence’) as long as he [she] wishes, if he [she]: (a)pays the rates, taxes and other outgoings in respect of the residence; (b)pays the premiums on any insurance policies taken out by my executors on the residence; and (c)keeps it in repair to the reasonable satisfaction of my executors. (d)makes all payments required by the provisions of any mortgage subsisting on the residence. (if this is included, move ‘and’ from subpara (b) to after ‘executors’ in subpara (c)] (2) (a)My executors must give the household chattels in the residence to [name]; (b)‘household chattels’ means all furniture, curtains, drapes, carpets, linen, china, glassware, ornaments, domestic appliances and utensils, garden appliances, utensils and effects and other chattels of ordinary household use or decoration, liquors and consumable stores and domestic animals, which, immediately before my death, were owned by me (whether absolutely or subject to any charge, encumbrance or lien securing the payment of money) or in which, immediately before my death, I held an interest as grantor under a bill of sale or as hirer under a hire-purchase or leasing agreement but does not include any motor vehicle, boat, aircraft, racing animal, original painting, trophy, clothing, jewellery or other chattel of a personal nature which was so owned by me or in which I held such an interest. 2.At the written request of [name] my executors must find tenants for and let all or part of the residence. 3.If in the opinion of my executors [name] is incapable of making a request of the kind in cl 2 of this schedule my executors may find tenants for and let all or part of the residence. 4.At the written request of [name] my executors may [must] sell or raise money on the security of all or part of the residence. 5.If in the opinion of my executors [name] is incapable of making a request of the kind referred to in clause 4 of this schedule my executors may sell or raise money on the security of all or part of the residence. 6. (1)If in the opinion of my executors [name] has ceased to reside permanently in the residence, or to comply with the conditions of his [her] right of occupation, my executors may give him [her] notice in writing: (a)specifying that he [she] has ceased to reside permanently in the residence or specifying some precise breach of a condition of occupation; (b)requesting him [her] to rectify the matter specified; and (c)setting out their powers under this will. (2)If [name] has failed to comply with that notice for two months, my executors may, without the consent of [name] do all or any of the following: (a)sell all or part of the residence; (b)find tenants for and let all or part of the residence; and (c)raise money on the security of all or part of the residence. 7. (1)If my executors let all or part of the residence they may pay from the rent all or part of: (a)the rates, taxes and other outgoings in respect of the residence; (b)the premiums on any insurance policies taken out by my executors on the residence; (c)the reasonable expenses of maintaining the residence to the satisfaction of my executors; and (d)the reasonable costs of letting the residence. (e)payments required to be made under any mortgage affecting the residence. (2)If my executors let all or part of the residence they may do all or any of the following: (a)pay all or part of the rent to [name]; (b)use all or part of the rent to provide accommodation for [name]; and (c)accumulate all or part of the rent. 8.If my executors sell or raise money on the security of all or part of the residence they may do all or any of the following: (a)use all or part of the proceeds to purchase another residence to which the provisions of this schedule apply as if this other residence were the residence; (b)invest all or part of the proceeds and pay all or part of the income or profit or both to [name]; (c)use all or part of the proceeds to provide accommodation for [name]; [this paragraph empowers the executors to use up the capital. The paragraph should be amended if the executors are not to have that power]; (d)invest all or part of the proceeds and employ all or part of the income or profit or both to provide accommodation for [name]; (e)pay all or part of the following: the rates, taxes and other outgoings in respect of the residence, the premiums on any insurance policies taken out by my executors on the residence and the reasonable costs of maintaining the residence and payments required to be made under any mortgage affecting the residence; (f)register any new residence, accommodation or investment in the name or names of my executors or any of them or any other name or names; and (g)determine in their absolute discretion (in the event of my executors disposing of or being deemed to have disposed of an asset) what part or parts of the capital or income will be resorted to in payment of any income tax liability flowing from the disposal or deemed disposal. 9.In addition to the powers given to them in this schedule my executors may exercise the powers given to them by law and the rest of this will. 10.It is my wish that my executors use their powers to ensure that [name] is provided with comfortable and appropriate accommodation out of the assets which I have set aside for that purpose. In doing so my executors must, as far as is practical, consult with [name] and, so far as is consistent with the general interest of the trust, give effect to his [her] wishes. 11.The following assets devolve (as if they were the residence) according to the trusts in para 12 of this schedule: (a)the balance of any capital sum remaining from: (i)a sale of all or part of the residence; and (ii)raising money on the security of all or part of the residence; (b)assets arising from the release of any accommodation secured for [name]; (c)accumulated income derived from the investment of capital arising from the sale of all or part of the residence; and (d)On the death of [name] after me, the residence [state destination or simplest alternative: forms part of the residue of my estate].1 12.accumulated rent from the letting of the residence or part thereof."

• "Precedent 20.620 would give the surviving spouse a right of residence in part of a building (Pr 20.615 is not appropriate in this case). Precedent 20.620 should be used only where special circumstances require it. It has two disadvantages: (1) the whole property must be held in trust for the life of the beneficiary (or until remarriage); (2) where the beneficiary ceases to reside in that part of the building, the fact that the occupant/beneficiary uses ‘all usual facilities of the house’ and would, in most cases, share them with relatives, is likely to render it impracticable to let to a third party. A provision empowering the executors to let to a third party and pay the rent to the beneficiary has not been included for this reason. It should be added that the right of residence does not provide the security of tenure of a lease.1 1. See Lewis v Bell (1985) 1 NSWLR 731 ; Varella v Marsicovetere [1954] VLR 550; [1954] ALR 853 ; Downie v Taylor [1954] VLR 603 ; Binions v Evans [1972] Ch 359 ; [1972] 2 WLR 729 ; [1972] 2 All ER 70 ; Ivory v Palmer [1975] ICR 340 ; (1975) 119 Sol Jo 405 ; DHN Food v Tower Hamlets [1976] 1 WLR 852 ; [1976] 3 All ER 462 ; Lyus v Prowsa Developments Ltd [1982] 1 WLR 1044 ; [1982] 2 All ER 953 ; AG Securities v Vaughan [1988] 3 WLR 1205 (HL); [1988] 3 All ER 1058 .": '[69,510] Right to occupy part of a building' in Wills Probate & Administration Vic (LexisNexis, 2019). 

Family Law Act 1975

• INTERACTION with Family Law Act 1975 (Cth), see above.