It is a common misconception that a valid will cannot be challenged. However, the law recognises certain circumstances where a testator is required to make provision for a family member. This post examines some of the basic principles under Part IV of the Administration and Probate Act (Vic) 1958 (‘the Act’).
Section 91 of reflects a tension in the law between:
- on the one hand, the interests of a beneficiary or beneficiaries to a validly made will; and on the other hand,
- the interests of non-beneficiaries for whom the law deems a testator should have provided.
There are essentially three questions that the Court asks in determining the success of an applicant in a claim under s 91:
- did the deceased have a responsibility to make provision for the proper maintenance and support for the applicant of the order?; (then, if such responsibility is established),
- did the will of the deceased make adequate provision for the proper maintenance and support of the applicant?; (and finally, if the answer is that it did not);
- what provision would a ‘wise and just testator’ have made for the applicant?
Thus the first two questions form a jurisdictional threshold for the Court to exercise its discretion under Part IV of the Act. That is, if and only if there is an answer of ‘yes’ to question (a) and an answer of ‘no’ to question (b) will the Court inquire as to what extent the Court should order the Estate to make provision for the applicant.
In doing so, the Court must have regard to several factors outlined in s 91(4) (e) – (p), which I will consider in detail below.
Interfering With the Right of a Testatrix to Dispose of Her Property Freely
Beneficiaries may be confused as to how people who are specifically omitted from a will, or who have their entitlements limited, may be able to seek provision under s 91 of the Act. The answer is that the law here recognises the balance between freedom and responsibility, which is summed up well by Callaway JA in Grey v Harrison:
‘… there is no legislative justification to abridge freedom of testation unless the testator has breached a moral duty, or alternatively that there is no judicial reason to exercise the statutory discretion except for the purpose of remedying such a breach.1‘
He goes on to say further:
‘Secondly, it is one of the freedoms that shape our society, and an important human right, that a person should be free to dispose of his or her property as he or she thinks fit. Rights and freedoms must of course be exercised and enjoyed conformably with the rights and freedom of others, but there is no equity, as it were, to interfere with a testator’s dispositions unless he or she has abused that right. To do so is to assume a power to take property from the intended object of the testator’s bounty and give it to someone else’2.
This is in the same vein as the dicta of Dixon CJ when he said:
‘All authorities agree that it was never meant that the Court should re-write the will of a testator. Nor was it ever intended that the freedom of testamentary disposition should be so encroached upon that a testator’s decisions expressed in his will have only a prima facie effect, the real dispositive power being vested in the Court.’3
Nevertheless, the Courts have regularly held in favour of applicants because they have not been ‘adequately’ or ‘properly’ provided for:
The concept of moral duty or responsibility to act as a wise and just testator is an exception to the important human right of any person to dispose of his or her property as he or she thinks fit.4
This is reflected in the oft-cited dicta of Salmond J in Re Allen (deceased); Allen v Manchester:
The provision which the court may properly make in default of testamentary provision is that which a just and wise father would have thought it his moral duty to make in the interests of his widow and children had he been fully aware of all the relevant circumstances.5
The exercise is one where the Court
must place itself in the position of the testator and consider what he ought to have done in all the circumstances of the case, treating the testator for that purpose as a wise and just, rather than a fond and foolish, husband or father.6
It follows then that s 91 of the Act can be explained as the law correcting the decisions of testators who do not act wisely or justly. To put it another way, a family member excluded from the will would argue that the Deceased was fond or foolish in providing too much for her son and not enough for her (de facto) widower and that the Court ought to make a provision ‘in default of her testamentary disposition.’7
Adequate Provision for the Proper Maintenance and Support of the Applicant
Although it dealt with Western Australian legislation which is slightly different to the Act, the High Court of Australia’s dicta in Vigolo v Bostin8 is a useful starting point in deciding what ‘proper maintenance and support’ of Mr Cullen would be.
On the word ‘proper’, Callinan and Heydon JJ explained that:
‘…it implies something beyond mere dollars and cents. Its use, it seems to us, invites consideration of all of the relevant surrounding circumstances… The use of the word “proper” means that attention may be given, in deciding whether adequate provision has been made, to such matters as what used to be called the “station in life” of the parties and the expectations to which that has given rise, in other words reciprocal claims and duties based upon how the parties lived and might reasonably expect to have lived in the future.’
The next of the indications is the expression, in comprehensive language, of the sorts of provision that the court may order, that is, provision by way of maintenance, support, education or advancement. “Maintenance” may imply a continuity of a pre-existing state of affairs, or provision over and above a mere sufficiency of means upon which to live. “Support” similarly may imply provision beyond bare need. The use of the two terms serves to amplify the powers conferred upon the court.9
The mandatory command of the legislature to take account of the specified matters (that is, in s 91(4)(e)-(p)) was introduced by the amendments to the Act in 1997. However, it is accepted (by decisions such as Herszlikowicz) that the appropriate standard or test to be applied in answering each of the two jurisdictional questions remains that which applied under the previous form of the legislation (ie the wise and just testator test).
In Draskovic v Bogicevic10 the Court found that the testator owed a responsibility to make adequate provision for the proper maintenance of his former wife and failed even though:
- the marriage only lasted a year and a half; and
- the marriage ended 14 years before the deceased died.
In deciding what order the Court should make in favour of an applicant, it will place itself in the position of the testatrix as a wise and just testatrix with reference to the following (from s 91(4) of the Act):
(e) any family or other relationship between the deceased person and the
applicant, including the nature of the relationship and, where
relevant, the length of the relationship;
(f) any obligations or responsibilities of the deceased person to the
applicant, any other applicant and the beneficiaries of the estate;
(g) the size and nature of the estate of the deceased person and any
charges and liabilities to which the estate is subject;
(h) the financial resources (including earning capacity) and the financial
needs of the applicant, of any other applicant and of any beneficiary
of the estate at the time of the hearing and for the foreseeable
(i) any physical, mental or intellectual disability of any
applicant or any beneficiary of the estate;
(j) the age of the applicant;
(k) any contribution (not for adequate consideration) of the applicant to
building up the estate or to the welfare of the deceased or the family
of the deceased;
(l) any benefits previously given by the deceased person to any applicant
or to any beneficiary;
(m) whether the applicant was being maintained by the deceased person
before that person’s death either wholly or partly and, where the
Court considers it relevant, the extent to which and the basis upon
which the deceased had assumed that responsibility;
(n) the liability of any other person to maintain the applicant;
(o) the character and conduct of the applicant or any other person;
(p) any other matter the Court considers relevant.
Ultimately the Court will take a global view in deciding what provision should be made for such an applicant.
Conclusion: What is Adequate?
In the case of Herszlikowicz v Czarny11, a matter in which the son of the deceased made application under s 91 of the Act, the Supreme Court of Victoria found that:
a wise and just testator would have wished to ensure that his son was placed by his will in a position where he had:
(i) unencumbered ownership of a modest dwelling suitable to his needs and legitimate wishes;
(ii) sufficient money to pay out his creditors; and
- a fund or “nest egg” sufficient to provide the plaintiff to live out his days in modest pleasure.It was clear from the facts of Herszlikowicz that the applicant son was hardly the prodigalson. Yet he was entitled to enough money to live out his days in ‘modest pleasure’! I think most lay-people would be surprised by this; which goes to show that regard needs to be had, when advising beneficiaries of a will, of these longstanding principles which have been codified into our law.
Marc Testart, Barrister
1 Grey v Harrison 2 VR 359 at 365; Herszlikowicz v Czarny  VSC 354 (8 September 2005) at paragraph 110.
2Ibid at 366.
3Pontifical Society for the Propagation of the Faith v Scales(1962) 107 CLR 9 at 20;Draskovic v Bogicevic  VSC 36 (1 March 2007) at paragraph 24.
4 Herszlikowicz at paragraph 110.
5Re Allen (deceased); Allen v Manchester  NZLR 218 at 220-22; Cited with approval in McCosker v McCosker (1957) 97 CLR 562 at 571-2; Coates v National Trustees Executors and Agencies Co Ltd  HCA 23; (1956) 95 CLR 494 at 519 (Fullagar J), 527 (Kitto J); Pontifical Society for the Propagation of the Faithful v Scales  HCA 19; (1962) 107 CLR 9 at 20 (Dixon CJ); Hughes v National Trustees, Executors and Agency Company of Australasia Ltd  HCA 2; (1979) 143 CLR 134 at 147-8 (Gibbs J), emphasis added.
6Bosch v Perpetual Trustee Company Ltd  AC 463 at 479.
7 As in Re Allen.
8 Vigolo v Bostin (2005) 221 CLR 191.
9 Ibid at 228.
10Draskovic v Bogicevic  VSC 36 (1 March 2007)
11Herszlikowicz v Czarny  VSC 354 (8 September 2005).