Part 6Family provision

Part 6—Family provision 114—Interpretation (1) In this Part— disability has the same meaning as in the Equal Opportunity Act 1984; family provision order—see section 116(1); step‑child, in relation to a deceased person, means a child of a spouse or domestic partner, or of a former spouse or former domestic partner, of the deceased. (2) For the purposes of this Part, if an order has been made under this Act authorising the Public Trustee to administer the estate of a deceased person who has died leaving a will— (a) the Public Trustee will be taken to be the administrator of the estate of the deceased person; and (b) the order will be taken to be the grant of probate of the will, or letters of administration with the will annexed of the estate, of the deceased person. 115—Persons entitled to claim under this Part (1) Subject to this Part, the following persons are, in respect of the estate of a deceased person, entitled to claim the benefit of this Part: (a) the spouse of the deceased person; (b) the domestic partner of the deceased person; (c) a former spouse of the deceased person; (d) a former domestic partner of the deceased person; (e) a child of the deceased person; (f) a step‑child of the deceased person; (g) a grandchild of the deceased person; (h) a parent of the deceased person; (i) a sibling of the deceased person. (2) A former spouse or former domestic partner of a deceased person is only entitled to claim the benefit of this Part if the former spouse or former domestic partner satisfies the Court that, immediately before the death of the deceased person, no agreement or order of a prescribed kind relating to the interests in property as between the former spouse or former domestic partner and the deceased person was in force. (3) A step‑child of a deceased person is only entitled to claim the benefit of this Part if the step‑child satisfies the Court that— (a) the step‑child is disabled and is significantly vulnerable by reason of their disability; or (b) the step‑child was dependent on the deceased person at the time of the deceased person's death; or (c) the step‑child cared for, or contributed to the maintenance of, the deceased person immediately before the person's death; or (d) the step‑child substantially contributed to the estate of the deceased person; or (e) assets accumulated by a parent of the step‑child (other than a step‑parent) substantially contributed to the estate of the deceased person. (4) However, a step‑child of a deceased person who is a minor is also entitled to claim the benefit of this Part if the step‑child satisfies the Court that the step‑child was maintained wholly or partly, or was legally entitled to be maintained wholly or partly, by the deceased person immediately before the person's death. (5) A grandchild of a deceased person is only entitled to claim the benefit of this Part if the grandchild satisfies the Court that— (a) the grandchild's parent, being a child of the deceased person, died before the deceased person; or (b) the grandchild was maintained wholly or partly, or was legally entitled to be maintained wholly or partly, by the deceased person immediately before the deceased person's death. (6) A parent of a deceased person is only entitled to claim the benefit of this Part if the parent satisfies the Court that— (a) in the case of a deceased person who died in a residential facility—the parent cared for, or contributed to the maintenance of, the deceased person immediately before the person entered a residential facility; or (b) in any other case— (i) the parent cared for, or contributed to the maintenance of, the deceased person immediately before the person's death; or (ii) the parent was maintained wholly or partly by the deceased person immediately before the deceased person's death. (7) A sibling of a deceased person is only entitled to claim the benefit of this Part if the sibling satisfies the Court that— (a) in the case of a deceased person who died in a residential facility—the sibling cared for, or contributed to the maintenance of, the deceased person immediately before the person entered the residential facility; or (b) in any other case—the sibling cared for, or contributed to the maintenance, of the deceased person immediately before the person's death. (8) In this section— residential facility means a facility at which residential care (as defined in the Aged Care Act 1997 of the Commonwealth) is provided. 116—Persons entitled may obtain order for maintenance etc out of estate of deceased person (1) Subject to this Part, if— (a) a person has died domiciled in this State or owning real or personal property in this State; and (b) by reason of the person's testamentary dispositions, or the operation of Part 5, or both, a person entitled to claim the benefit of this Part is left without adequate provision for their proper maintenance, education or advancement in life, the Court may, in its discretion, on application by or on behalf of a person so entitled, make an order (a family provision order) that such provision as the Court thinks fit be made out of the estate of the deceased person for the maintenance, education or advancement of the person so entitled. (2) In determining whether to make a family provision order— (a) the wishes of the deceased person is the primary consideration of the Court; and (b) the Court must have regard to— (i) any evidence of the deceased person's reasons for making the dispositions in the deceased person's will (if any); and (ii) the applicant's vulnerability and dependence on the deceased; and (iii) the applicant's contribution to the estate of the deceased person; and (iv) the character and conduct of the applicant; and (c) the Court may have regard to any other matter that the Court considers relevant. (3) In determining whether to make a family provision order, and the amount that a claimant should receive if a family provision order is made, the Court must take into account any government welfare payments that the claimant receives, or may be entitled to receive, and whether the making of a family provision order could worsen the claimant's financial position. (4) The Court may refuse to make a family provision order in favour of any person on the ground that the person's character or conduct is such as, in the opinion of the Court, to disentitle the person to the benefit of this Part, or for any other reason that the Court thinks sufficient. (5) The Court may, in making a family provision order, impose such conditions, restrictions and limitations as it thinks fit. (6) If, in respect of an application for a family provision order, it appears to the Court that the matter would be more appropriately determined by proceedings outside the State, the Court may (without limiting the powers conferred on it by the preceding provisions of this section) refuse to make an order under this section or adjourn the hearing of the application for such period as the Court thinks fit. (7) In making a family provision order the Court may, if it thinks fit, order that the provision will consist of a lump sum or periodic or other payments or a lump sum and periodic or other payments. 117—Power to require security for costs (1) The Court may order a party to proceedings under this Part to give security for the payment of costs that may be awarded against the party if it appears to the Court that the party's claim for provision may be without merit or the party is unwilling to negotiate a settlement of a claim for provision. (2) The security for costs will be of such amount, and given at such time and in such manner and form, as the Court directs. 118—Time within which application must be made (1) Subject to this section, an application for a family provision order must be made within 6 months after the grant of probate or administration. (2) The Court may, after hearing such of the persons affected as the Court thinks necessary, extend the time for making an application for a family provision order. (3) An extension of time to make an application may be granted— (a) on such conditions as the Court thinks fit; and (b) whether or not the time for making an application for a family provision order has expired. (4) An application for extension of time under this section must be made before the final distribution of the estate. (5) Any distribution of any part of the estate made before the application for extension of time must not be disturbed by reason of that application or any order made on the application. (6) An application for a family provision order is to be taken to be made on the day on which the originating process by which it is commenced is filed in the Court. (7) A copy of an application for a family provision order must be served on all parties to the proceedings in accordance with the rules of court. (8) If an application for a family provision order has been made, the Court may, if the Court is satisfied that it is just and expedient to do so, permit at any time prior to the final determination of the proceedings, the joinder of further claimants as parties to the application. 119—Provisions relating to family provision orders (1) A family provision order must— (a) specify the amount and nature of the provision made by the order; and (b) specify the part or parts of the estate of the deceased person out of which that provision is to be raised or paid, and prescribe the manner of raising and paying that provision; and (c) set out the conditions, restrictions or limitations imposed by the Court. (2) Subject to subsection (3) and unless the Court otherwise orders, the burden of any such provision will, as between the persons beneficially entitled to the estate of the deceased person, be borne by those persons in proportions to the values of their respective interests in the estate. (3) If the deceased person died leaving a will under which 2 or more persons are successively entitled to any property, the successive interests will not, unless the Court otherwise orders, be separately valued for the purposes of subsection (2), but the proportion of the provision to be borne by that property will be raised or charged against the corpus of such property. (4) If the Court makes a family provision order, the Court must direct that a certified copy of the order be made on the probate of the will, or letters of administration of the estate, of the deceased person (and for that purpose the Court may require the production of the grant of probate or administration). (5) The Court may at any time, and from time to time, on the application of the administrator or of any person beneficially entitled to or interested in any part of the estate of the deceased person, rescind or alter any order made under this Part. (6) Notice of an application for the rescission or alteration of an order must be served on all persons entitled to the benefit of the order in respect of which the application is made. (7) On any order being made under this Part, the portion of the estate affected by the order must be held subject to the provisions of the order. (8) The Court may make such order as to the costs of any proceeding under this Part as the Court considers just. 120—Order to operate as will or codicil Subject to this Act, every provision made by a family provision order will operate and take effect as if it had been made— (a) if the deceased person died leaving a will—by a codicil to that will executed immediately before the person's death; or (b) if the deceased person died intestate—by a will executed immediately before the person's death. 121—Court may fix periodic payment or lump sum (1) The Court may at any time fix a periodic payment, or lump sum, or a periodic payment and a lump sum, to be paid by any person, to represent, or in commutation of, the proportion of the sum ordered to be paid that falls on the portion of the estate to which the person is entitled, and to exonerate that portion of the estate from further liability. (2) The Court may give incidental directions as to the payment or investment of the lump sum or the manner in which the periodic payments are to be made or secured. 122—Court may vary or discharge order If the Court has ordered periodic payments, or has ordered a lump sum to be invested for the benefit of any person, the Court may inquire whether at any subsequent date the party benefitted by the order has otherwise become possessed of, or entitled to, provision for the person's proper maintenance, education and advancement, and into the adequacy of that provision, and may discharge, vary, or suspend the order, or make such other order as the Court considers just in the circumstances. 123—Mortgage or assignment of provision invalid No mortgage, charge or assignment of any kind whatever of or over the provision made by an order under this Part will, unless made with the prior permission of the Court, be of any force, validity or effect. 124—Liability of administrator after distribution of estate (1) An administrator of the estate of a deceased person who has lawfully distributed the estate or any part of the estate is not liable to account for that estate or that part of the estate (as the case may be) to any person claiming the benefit of this Part, unless the administrator had notice of the claim at the time of the distribution. (2) Subsection (1) does not prevent the Court from ordering that any provision under this Part be made out of the estate, or any part of the estate, after it has been distributed.