The new Family Provision Amendments – what you need to know

Family Law and Wills and Estates Law often correlate for a variety of reasons, including where a party to family law proceedings has received an inheritance, has a significant interest in a deceased estate that is yet to be realised or where a party has a potential claim over the assets of a deceased estate. Such matters and interests are important to understand and consider when determining the asset pool available for division for a property settlement.

As such, the new Justice Legislation Amendment (Succession and Surrogacy) Act 2014 (No 80/2014), which amends the Administration and Probate Act 1958, is important to consider for family law property matters. The Act has now passed and commenced operation on 1 July 2015. The new regime applies to the estates of all persons who pass away on and from 1 January 2015. The previous law continues to apply to the estates of deceased persons who died before 1 January 2015.

The new law entails significant changes, especially relating to eligibility for potential claimants to bring claims under the Act. Eligibility under the new amendments is again category based. However, the categories of eligible claimants are more restrictive in the new regime and can be summarised in the categories as follows:

• Former or actual spouse and domestic partner. The domestic partner may be registered or unregistered.
• Natural or adopted child.
• The term will be open to interpretation to the Courts. It may not only include the child of a spouse but also the child of a domestic partner.
• Person who believed the deceased was a parent of that person and was treated by the deceased as a natural child.
• Registered caring partner. Not falling under this definition is a person who provides domestic support and personal care to the deceased person for a fee, for reward, or on behalf of another person or an organisation.
• Spouse/domestic partner of a child of the deceased.
• Member of the household.

Considerable changes have also been made to the factors that the Court must take into account when making Orders under the Act. The new Act has deliberately avoided the term “responsibility” which was used previously and expressly adopted the language of “moral duty”. The Court must not make a family provision order (that is, award a family member or eligible person a portion of the deceased estate) unless satisfied that at the time of deceased’s death, the deceased had a moral duty to provide for the eligible person’s proper maintenance and support. This change is designed to emphasize that simply because a person is eligible to bring a claim under the Act does not mean that it is sufficient in and of itself to have provision made for them from the deceased’s estate.

The new Act points out the importance of an eligible person’s dependency when determining whether to make an Order. In the case of the caring partner, grandchild, spouse or domestic partner of a child of the deceased (if the child dies within one year of the deceased’s death) and a member of the deceased’s household, the Courts must consider if the person has been wholly or partly dependent on the deceased. This also has to be taken into account to define the amount of provision awarded, which has to be proportionate to the degree of dependency on the deceased. However, in all cases, the award should not provide an amount greater than necessary to cover the eligible person’s proper maintenance and support.

Importantly, the new Act seeks to limit the number of claimants and has therefore introduced further restrictions. In the case of a claimant who was treated as a natural child of the deceased or a child or step-child of the deceased (who is not a minor, full-time student under 25 or who has a disability), the Court must take into account the degree to which the claimant is unable to provide adequately for their own proper maintenance and support.

In summary, it can be stated that the new Act introduces a category based eligibility and makes a considerable differentiation between the categories. It remains to be seen if the introduction of the requirement of the “moral duty” will make a difference and the way the Courts will take the new factors into account.

If you have any further queries, please contact  r a member of our Family Law team.