Will Challenges – How Much is Enough?

Under the terms of the Family Provision Act 1972, the Court is allowed to override the terms of a deceased person’s Will, in certain circumstances.

However, the Court can only make an order that provides for the applicant’s proper maintenance and support. The order must be no more than what is adequate for that purpose. The Family Provision Act is not designed to pacify hurt feelings or to ensure equal distribution of a deceased’s property.

Mr Michael Wright passed away in April 2012 at the age of 74 leaving an estate worth about $1 billion dollars.

The deceased had left one of his daughters, Olivia Mead, with what would appear to be a relatively diminutive portion of that colossal estate - an amount of $3 million which was held under a discretionary trust attaching fairly restrictive conditions which ultimately could have resulted in Olivia receiving nothing.

Olivia brought a claim under the Family Provisions Act seeking further provision.  At first instance, Master Sanderson concluded that the deceased had not made adequate provision under his Will for Olivia and had also made the provision under circumstances where it was held in a discretionary trust with significant restrictive conditions.

Master Sanderson ordered an amendment to the Will to the effect that Olivia would receive an amount of $26 million which, at first consideration, one may consider to be a “fairer” and more appropriate amount to be provided to her, given the total size of the deceased’s Estate.

However, on appeal it was held that, while Olivia was not adequately provided for from the deceased’s estate, the amount awarded was not appropriate to the consideration of what constitutes “proper” maintenance, support, education or advancement in life.  The amount was subsequently reduced to $6,142,000, taking into consideration the $3 million already gifted to Olivia (Lemon V Mead [2017] WASCA 215).

The decision deals with two considerations of family provision claims.  Firstly, that a Will maker must give careful consideration in their estate planning to the needs of all family members who may potentially have a family provision claim pursuant to the Act.  Secondly, the Court’s discretion to award an amount under a family provision claim is not unfettered and must take into consideration of what constitutes “proper” allowance, taking into account the applicant’s current financial position and future needs as well as the size of the estate and the relationship between the deceased, the applicant and other beneficiaries.

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