Adequate Provision for Adult Child from Deceased Estate

When an adult child is seeking orders under section 6 of the Family Provision Act 1972 (WA) that adequate provision be made out of the estate of a deceased parent for the proper maintenance, support education and advancement of life, the court in Mills -v- Piller [2017] WASC 45 made the following observations:

General Principles Applied with respect to Adult Child Claim Against the Estate

  1. The principles to be applied with respect to claims by adult children… are:

(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 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…

(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…

(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… 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…

(e)        There is no need for an applicant adult child to show some special need or some special claim…

(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… Likewise, the need for financial security and a fund to protect against the ordinary vicissitudes of life, is relevant… 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…

(g)        The applicant has the onus of satisfying the court, on the balance of probabilities, of the justification for the claim…

(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.

  • 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…

Primary Factors for Considering Adequate Provision

  1. In determining… whether the deceased failed to make adequate provision for [the adult child] as at the date of her death, reference should be made to four primary factors:

(a)        the size of the estate;

(b)        [the adult child]s’ needs and any moral claim that [they] have;

(c)        the competing claims on the estate; and

(d)        the provision made by the deceased for [the adult child].

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