Family Provision Act 1969

This Act is the Family Provision Act 1969.

The dictionary at the end of this Act is part of this Act.

Note 1 The dictionary at the end of this Act defines certain terms used in this Act, and includes references (signpost definitions) to other terms defined elsewhere.

For example, the signpost definition ‘intestate—see the Administration and Probate Act 1929, section 44 (1).’ means that the term ‘intestate’ is defined in that section and the definition applies to this Act.

Note 2 A definition in the dictionary (including a signpost definition) applies to the entire Act unless the definition, or another provision of the Act, provides otherwise or the contrary intention otherwise appears (see Legislation Act, s 155 and s 156 (1)).

A note included in this Act is explanatory and is not part of this Act.

Note See the Legislation Act s 127 (1), (4) and (5) for the legal status of notes.

This section applies if—

probate of a will or letters of administration of an estate is granted outside the ACT; and

the probate or administration is sealed with the seal of the Supreme Court under the Administration and Probate Act 1929, section 80.

The probate or administration is taken, for this Act, to be probate of the will, or letters of administration of the estate, granted in the ACT on the date when it was sealed.

Subject to this section, each of the following persons is entitled to make application to the Supreme Court for provision out of the estate of a deceased person:

a partner of the deceased person;

a person (other than a partner of the deceased person) who was in a domestic relationship with the deceased person for 2 or more years continuously at any time;

a child of the deceased person;

a stepchild of the deceased person;

a grandchild of the deceased person;

a parent of the deceased person.

A stepchild of a deceased person is not entitled to make an application to the Supreme Court for provision out of the estate of the deceased person unless the stepchild was maintained by the deceased person immediately before his or her death.

A grandchild of a deceased person is not entitled to make an application to the Supreme Court for provision out of the estate of the deceased person unless—

the parent of the grandchild who was a child of the deceased person died before the deceased person died; or

a parent of the grandchild was alive on the day the deceased person died but the grandchild, immediately before the deceased person died—

was not maintained by a parent; and

was maintained by the deceased person.

A parent of a deceased person is not entitled to make an application to the Supreme Court for provision out of the estate of the deceased person unless—

the parent was maintained by the deceased person immediately before his or her death; or

the deceased person was not survived by any partner or any of the children of the deceased person.

For this section, a person shall not be regarded as having been maintained by the deceased person immediately before his or her death unless—

there was in force at that time an order of a court requiring the deceased person to pay maintenance to or for the benefit of the other person; or

the deceased person was, at that time, whether under a written agreement or otherwise, maintaining that other person or making a contribution to the maintenance of that other person, being a contribution that, in all of the circumstances, can be regarded as other than a nominal contribution; or

a court would, if the deceased person were still living, have power to make an order requiring the deceased person to pay maintenance to or for the benefit of the other person.

For this section, a child of the deceased person born alive after the death of that person shall be regarded as having been born before the death of the deceased person.

In this section:

domestic relationship—see the Domestic Relationships Act 1994, section 3.

partner, of a deceased person, means someone who—

was the domestic partner of the person at any time; and

either—

was the person’s spouse, civil union partner or civil partner at any time; or

was the person’s domestic partner continuously for 2 or more years at any time; or

is the parent of a child of the person.

Note For the meaning of domestic partner, see Legislation Act, s 169.

On application by a person entitled, under section 7, to apply for provision out of the estate of a deceased person, the Supreme Court may order that the provision as that court thinks fit be made for the applicant out of the estate.

The Supreme Court shall only make an order under subsection (1) if satisfied, in consideration of the criteria set out in subsection (3), that as at the date of the order, adequate provision for the proper maintenance, education or advancement in life of the applicant is not available—

under the will of the deceased; or

if the deceased died intestate—under the law applicable to that intestacy; or

under that will and that law combined.

The criteria for the Supreme Court’s decision under subsection (2) in relation to the deceased and the applicant are as follows:

the character and conduct of the applicant;

the nature and duration of the relationship between the applicant and the deceased;

any financial and non-financial contributions made directly or indirectly by or on behalf of either or both the applicant and the deceased to the acquisition, conservation or improvement of any of the property or financial resources of either or both persons;

any contributions (including any in the capacity of homemaker or parent) by either the applicant or the deceased to the welfare of the other, or of any child of either person;

the income, property and financial resources of the applicant and the deceased;

the physical and mental capacity of the applicant, and the deceased (during his or her life), for appropriate gainful employment;

the financial needs and obligations of the applicant and the deceased (during the life of the deceased);

the responsibilities of either the applicant or the deceased (during his or her life) to support any other person;

the terms of any order made under the Domestic Relationships Act 1994, section 15 with respect to the property of the applicant or the deceased;

any payments made to either the applicant or the deceased by the other, under an order of the court or otherwise, in respect of the maintenance of the other person or any child of the other person;

any other matter the court considers relevant.

The Supreme Court may regard an application for provision out of the estate of a deceased person by a single person as an application made on behalf of all the persons entitled to make applications for provision out of the estate of the deceased person.

Subject to subsection (2), an application for an order under section 8 shall be made within a period of 6 months after the date when administration in respect of the estate of the deceased person has been granted.

The Supreme Court may, after hearing such of the persons affected as the court thinks necessary, extend the time within which an application may be made under section 8.

An extension of time under this section may be granted—

on any conditions that the Supreme Court thinks fit; and

whether or not the time for making an application has ended.

An application for the extension, under this section, of the time within which an application for provision out of the estate of the deceased person may be made under section 8 shall not be made after the estate of a deceased person has been lawfully and fully distributed.

An application for provision out of the estate of a deceased person shall, for this section, be deemed to have been made on the day when the notice of motion or other document instituting the application is filed.

In this section:

previous order means an order made under this Act that has not been discharged.

Subject to this Act, on application made by or on behalf of the administrator of the estate of a deceased person or a person beneficially entitled to, or having an interest in, a part of the estate of a deceased person, the Supreme Court may, in its discretion and having regard to all the circumstances of the case, by order—

vary a previous order relating to that estate by reducing the amount of the provision made by that previous order; or

suspend a previous order relating to that estate for a specified period; or

discharge a previous order relating to that estate.

Subject to this Act, if by a previous order the Supreme Court has directed that provision by way of periodical payments or the benefit of the investment of a lump sum be made for a person out of the estate of a deceased person, on application made by or on behalf of the person, if the court is satisfied that the provision is not adequate for the proper maintenance, education or advancement in life of the person, the court may, in its discretion and having regard to all the circumstances of the case, by order, vary the previous order by increasing the amount of the provision.

The applicant for an order under subsection (2) shall cause notice of the application to be served on the person in whose favour the previous order was made.

If the Supreme Court makes an order under subsection (2), the court may make any further orders that it thinks fit for the purpose of giving effect to the order under subsection (2) and any other orders that it considers just.

If an application has been made to the Supreme Court for an order under section 8 or 9A for or in relation to provision out of the estate of a deceased person, the applicant shall cause notice of the application to be served on each person who is an administrator of the estate of the deceased person.

The Supreme Court may—

on its own initiative and either before or during the hearing of an application for an order under section 8 or 9A for or in relation to provision out of the estate of a deceased person; or

on an application made by the applicant for such an order or by the administrator of the estate of the deceased person;

order that notice of the application be served on the persons that the court thinks fit.

An order under section 8 or 9A shall specify the amount and nature of the provision (if any) to be made and may specify conditions, restrictions and limitations subject to which the provision is to be made that the Supreme Court thinks fit to impose.

Unless the Supreme Court otherwise orders, the burden of the provision ordered by the court to be made for the benefit of a person shall, subject to subsection (3), be borne between the persons beneficially entitled to the estate of the deceased person (other than the person or persons in whose favour an order or orders under this Act is or are made), in proportion to the values of their respective interests in the estate.

If persons are successively entitled to estates or interests in any property that is settled by the will of the deceased person, those estates and interests shall not, unless the Supreme Court otherwise orders, be valued separately but the proportion of the provision required by subsection (2) to be borne by those persons out of those estates and interests shall be raised or charged against the corpus of that property.

Without limiting the powers of the Supreme Court under this Act, the court may order that an amount specified in the order be set aside out of the estate of the deceased person and held on trust as a class fund for the benefit of 2 or more persons specified in the order in whose favour orders for provision out of the estate of the deceased person have been made.

If an amount is ordered to be held in trust as a class fund, the trustee of the fund shall invest so much of the amount as is not applied in accordance with this subsection and may, subject to any directions or conditions that the Supreme Court gives or imposes, but otherwise as the trustee thinks fit, apply the whole or any part of the income and capital of the fund for or towards the maintenance, education or advancement in life of the persons for whose benefit the class fund is held, or any 1 or more of them to the exclusion of the other or others of them in the shares and in the way that the trustee, from time to time, determines.

If 1 or more of the persons for whose benefit money is held in trust as a class fund dies, a reference in subsection (2) to the persons for whose benefit money is held in trust as a class fund is, after the death of that person, a reference to the survivor or survivors of those persons.

If an amount is set aside as a class fund, the administrator of the estate of the deceased person shall, unless the Supreme Court otherwise orders, be the trustee of the class fund.

If—

application is made under section 8 or 9A for an order that provision be made out of the estate of a deceased person; and

the deceased person has, by will, exercised a general or a special power of appointment in respect of property, being a power under which the deceased person was, immediately before death, entitled to appoint the property to himself or herself; and

the Supreme Court is satisfied that—

adequate provision for the person who has made the application cannot justly be made out of other property forming part of the estate of the deceased person; or

because of the existence of special circumstances, an order should be made that provision be made out of, or charged on, the property in respect of which the deceased person has exercised the general or special power of appointment;

the court may order that provision be made out of, or charged on, the property in respect of which the deceased person has exercised the general or special power of appointment.

If—

a testator has power to appoint, by will, any real property in the way that he or she thinks fit; and

by will, the testator has made a general devise of his or her real property or of his or her real property at a particular place, in the occupation of a particular person or otherwise described in a general way without expressly exercising the power of appointment; and

under the Wills Act 1968, section 26 (2), that general devise is to be construed as including the real property over which the deceased person had that power of appointment;

the other property forming part of the estate of the deceased person referred to in subsection (1) (c) (i) shall be deemed to include the real property over which the deceased person had that power of appointment.

If—

a testator has power to appoint, by will, any personal property in the way that he or she thinks fit;

by will, the testator has made a general bequest of personal property or of any class of personal property described in a general way without expressly exercising the power of appointment; and

under the Wills Act 1968, subsection 26 (3) that general bequest is to be construed as including the personal property over which the deceased person had that power of appointment;

the other property forming part of the estate of the deceased person referred to in subsection (1) (c) (i) shall be deemed to include the personal property over which the deceased person had that power of appointment.