Inadequate provision

A general principle of law is the freedom of testation, that is, you can give your estate to whomever you wish. This can be unfair and unjust, for example, when a spouse or child of the deceased suffers hardship as a result of the deceased's whims, such as giving money to a particular organisation or ignoring the needs of a dependant.

To amend this situation, the Inheritance (Family Provision) Act 1972 (SA) , was passed. Briefly, the object of this Act is to allow the court to award to an eligible applicant part of the deceased's estate, even though the deceased had left nothing, or very little, to that person in the will. A claim can also be made under this Act with respect to an intestate estate. The following relatives can apply for a re-allocation of the deceased's estate [s 6]:

  • the spouse of the deceased person
  • a person who has been divorced from the deceased person
  • the domestic partner of the deceased person
  • a child of the deceased person
  • a child of a spouse or domestic partner of the deceased person being a child who was maintained wholly or partly or who was legally entitled to be maintained wholly or partly by the deceased person immediately before his or her death
  • a child of the child of the deceased person
  • a parent of the deceased person who satisfies the court that he or she cared for, or contributed to the maintenance of, the deceased person during his or her lifetime
  • a brother or sister of the deceased person who satisfies the court that he or she cared for, or contributed to the maintenance of, the deceased person during his or her lifetime.

A 'domestic partner' is someone who was in a registered relationship with the deceased under the Relationships Register Act 2016 (SA) at the date of death or some earlier date or someone declared to have been a domestic partner of the deceased under the Family Relationships Act 1975 (SA) at the date of death or some earlier date. For more information, see 'What is a domestic partnership?'.

The application must be made within six months of the grant of probate or letters of administration, although the court may give an extension of time if the estate has not been completely administered.

Not all people entitled to apply under the Act will obtain a re-allocation order. The test applied by the court is whether the deceased failed to provide adequately for the applicant's proper maintenance, education or advancement in life.

A challenge will not succeed on the ground that the will was unfair or unjust in its distribution, when in fact the will does provide adequately for the applicant's maintenance. For example, where a man leaves his large business to a football club and his house and a significant sum of money to his wife, the wife could not easily complain that she had not received adequate provision, even though it is perhaps unjust that a football club should receive more than her.

Over the years, courts have created certain guidelines as to what is adequate provision for proper maintenance. The main standard is that the court must put itself in the position of the deceased and consider the case as a wise and just, rather than a fond and foolish, spouse or parent. Some of the important considerations are:

  • the size of the estate
  • the age, health and financial position of the applicant. It is necessary for the applicant to prove that she or he is in financial need, or that there is some other special reason why provision should be made for her or him. For example, an applicant in a good financial position might still succeed if it is shown that the deceased was able to build her or his estate through the substantial efforts of the applicant.
  • the closeness of the relationship between the applicant and the deceased.

A claim under the Inheritance (Family Provision) Act 1972 (SA) may also proceed where the deceased did not make a will and their estate is distributed according to a statutory order, see if there is no will.

Inadequate provision  :  Last Revised: Thu Aug 3rd 2017
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