Family Provision claims are legal challenges that question the fairness of a Will. An individual eligible to make a claim may believe they have been treated unfairly or unjustly by being left out of a Will or receiving a smaller portion of the estate than they believe they are entitled to. A family provision claim aims to ensure that eligible individuals are provided for, regardless of whether a Will exists and whether or not they were explicitly named in it.
Chapter Three of the Succession Act 2006 (NSW) outlines the Supreme Court’s decision-making process concerning a family provision claim. This chapter gives the Court the authority to modify the deceased individual’s Will based on specific criteria.
The Two Stages
The Court has traditionally followed a two-stage process in determining further provision. The first stage involves determining whether the testator left adequate provision for the applicant’s maintenance, education, and future advancement in life. If the answer to this question is yes, the second stage involves deciding the amount of provision.
In Singer v Berghouse[1994] HCA 40; (1994) 181 CLR 201 the appellant obtained leave to appeal to the High Court after their family provision claim was dismissed both at the first instance and on appeal. The appellant requested an order for family provision from her late husband’s estate under the Family Provision Act 1982 (NSW).
The majority of the High Court concluded that the ante-nuptial agreement did not remove the appellant’s right to claim under the Act. However, the appellant provided insufficient evidence that the testator left her without proper provision. The Court noted that both parties had comparable assets. Still, the appellant had not presented objective evidence of her income, expenses, future intentions, or needs. Therefore, making a provision for her would be based solely on speculation.
The High Court determined that the Court should follow the two-stage approach dictated by the Family Provision Act 1982 (NSW) in reaching a decision. The Court should take this approach to make their determination.
- The Court is responsible for determining whether adequate provision has been made for the applicant. In this inquiry, the Court assesses the provision made for the appellant concerning the level of maintenance required, considering the relevant circumstances. The first stage of this inquiry is an objective fact-finding exercise. Still, it also requires the Court to make evaluative judgments about what is considered ‘proper’ or ‘adequate’.
- Suppose the Court finds the first inquiry in favour of the appellant. In that case, the Court must determine the appropriate course of action. In doing so, the Court must also consider the relevant circumstances of the case. This inquiry necessitates the exercise of judicial discretion, and the Court may elect to issue or deny an order regardless of their ruling on the initial question.
Andrew v Andrew [2012] NSWCA 308 raised doubts regarding the suitability of the two-stage approach as prescribed by the Succession Act 2006 (NSW). Nevertheless, since the judges could not unanimously decide on the issue, the two-stage approach remains the standard practice in NSW.
The Court decided it was unacceptable to create a regulation acknowledging a testator’s right not to provide for an adult child if they believe the child has withheld love and support. Therefore, the Court has directed that a provision of $60,000 be made in favour of the applicant, considering her poor financial situation, her caregiving responsibilities, and the stable positions of her siblings.
Justice Barrett believed in continuing the two-stage approach as the structure of the Succession Act supported it. According to section 59(1)(c), the Court must ascertain whether the testator had made adequate provision. In contrast, section 59(2) indicates that it may provide adequate provision once the Court is satisfied. Therefore, although the Succession Act differs from the Family Provision Act, no fresh purpose or objective would necessitate a different approach.
Background
On 6 August 2021, Caterina Felice Bohen (the testator) died at the age of 80 years, survived by two adult daughters, Tina Louise Bohen and Angela Marie Bohen, and five grandchildren. According to a Will dated 10 August 2016, the testator left the major part of her estate to those of her grandchildren who survived her and attained the age of 35 years. At the time of her death, all the testator’s grandchildren were minors; one is now 19 years of age.
The 2016 Will has three dispositive provisions as follows:
“4. I GIVE my furniture and the contents of my home (excluding my motor vehicle) to my daughters TINA LOUISE BOHEN and ANGELA MARIE BOHEN in equal shares.
5. I GIVE the sum of $200,000 to ROBIN ETHERTON (the ex-husband of my daughter TINA LOUISE BOHEN), and I also give to him any motor vehicle owned by me.
6. AS TO the rest and residue of my estate to be divided between such of my grandchildren as survive me and attain the age 35 years in equal shares as tenants in common subject to the provisions of clause 7.”
Clause 7 provided for dispositions to any child of a grandchild who did not satisfy the conditions of survival.
The sole defendant is the solicitor, Dean Joseph Mitchelmore, (the executor) who applied for probate. The deceased left only sentimental items to her daughters. At the same time, her Will gave a $200,000 gift and a car to Robin Etherton, the ex-husband of Tina Bohen. The remaining estate, valued at approximately $1.2m, would be divided equally between the deceased’s five grandchildren once they reached 35.
In Etherton v Mitchelmore [2024] NSWSC 170, Robin Etherton claimed a handwritten paper signed by the deceased and dated 27 December 2020. The deceased gave Mr Etherton a used envelope when he visited her at her home on Sunday, 27 December 2020, which included the testator’s address and the date. After these details, the document proceeds to read:
“I Caterina Felice Bohen wish to leave my house to Robin Etherton of Roseville, as he was the only one who ever helped me when I needed help”.
Etherton v Mitchelmore [2024] NSWSC 170 at 3
Mr Etherton was married to the deceased’s older daughter, Tina Bohen ( the first plaintiff), from approximately 2007 until 2010 or 2011. However, they separated within a year of the marriage. According to Mr Etherton, he visited the testator and completed odd jobs for her at her request between 2012 and May 2021.
Mr Etherton submitted that although the handwritten document did not meet the formal requirements for a valid will as stated in s 6 of the Succession Act 2006 (NSW) it was a document that expressed the testator’s wishes about her testamentary intentions. Mr Etherton added that the Court should be satisfied that the testator intended the document to alter her Will under s 8(2) of the Succession Act.
The decision
The Court dismissed Mr Etherton’s claim that the handwritten note from the deceased was an alteration of her Will. If Mr Etherton’s claim had been successful, it would leave the grandchildren without any share in the deceased’s estate. Since they are not eligible individuals under s 57(e)(ii) of the Succession Act, they would not have been able to claim provision under s 59. However, they would likely have benefited from family provision orders made in favour of their mothers, both directly and indirectly.
The Court dismissed the claim, holding that the 2016 Will remained valid. The Will included:
- A bequest to Mr Etherton.
- Sentimental items for the testator’s daughters.
- The residue of the estate for the grandchildren who survived and reached 35 years of age.
In Bohen v Mitchelmore [2024] NSWSC 171 the testator’s daughters, Tina Louise Bohen and Angela Marie Bohen (the plaintiffs) made a joint application for provision from their mother’s estate under Pt 3.2 of the Succession Act 2006 (NSW).
The evidence submitted by the plaintiffs demonstrated their relationship with the deceased and their attempts to keep in touch despite residing in different cities. After being tested under cross-examination, the plaintiffs convinced the Court that the reason for excluding the daughters from receiving any significant financial benefit was questionable.
Both plaintiffs submitted their financial needs, which the Court acknowledged, and that they had legitimate reasons for seeking provision from the estate. Additionally the Court held that the plaintiffs were devoted parents who would use any provision to benefit their children.
The executor opposed the application for provision. Four of the five grandchildren are minors and have a tutor appointed to represent their interests. Following a conversation with the executor the tutor chose not to participate- the executor is expected to defend the grandchildren’s interests according to the 2016 will. The fifth grandchild is 19 but has also not participated in the proceedings.
The Court dismissed arguments that a potential life insurance death benefit should have any influence on the amount of provision granted. Instead, the Court ordered that both plaintiffs receive one-third of the net residual estate after deducting costs and expenses, ordering the estate to pay the costs of both parties.
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