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Wilson, Samantha --- "Stepchildren’s Claims under Family Pr ovision Legislation: A comparison Between N ew Zealand and New South Wales" [2010] NZLawStuJl 4; (2010) 2 New Zealand Law Students’ Journal 311

Last Updated: 24 October 2012

STEPCHILDREN’S CLAIMS UNDER FAMILY PROVISION LEGISLATION: A COMPARISON BETWEEN NEW ZEALAND AND NEW SOUTH WALES

SAMANTHA WILSON^*

Introduction

Brookers Family Law states: “The purpose of the Family Protection Act

1955 is to give the High Court, and since 1992 the Family Court, the discretion to order that provision be made from an estate in favour of a limited range of members of the deceased if the Court is satisfied that the deceased’s will or the intestacy rules do not make adequate provision for the proper maintenance and support of the applicant family member.”¹ The changing face of the New Zealand “family” since family provision legislation was first enacted in 1900² has seen Parliament move to overcome legal disabilities faced by specific groups (including same-sex partners, de facto partners and illegitimate children) through specific legislative amendment. While consolidation of the Family Protection Act in 1955 expanded the list of eligible applicants to include a stepchild of the deceased, the stringent conditions attached have resulted in very few stepchildren qualifying in New Zealand. In order to determine whether the New Zealand Act is fair and sufficiently flexible to accommodate stepchildren in varying family circumstances, it is useful to compare the New Zealand legislation and approach with that of New South Wales.

The New South Wales Succession Act 2006 is historically derived from

New Zealand legislation³. While at first glance, New Zealand’s

^* This article was submitted as a research paper in 2009 in partial completion of an LLB(Hons), University of Otago. After completing my studies this year, I will be taking up a position as a Judges' Clerk at the Auckland High Court in January 2011. I would like

to acknowledge the support and guidance of the University of Otago Faculty of Law staff as well as that of my parents, Diane and Mike.

¹Nicola Peart and Patrick Mahony (eds) Brookers Family Law: Family Property (looseleaf ed, Brookers) at [4-245 FPIntro.01]

² The Testator’s Family Maintenance Act 1900

^{3 Rosalind Croucher and P Vines Succession: Families, Property and Death: text and cases (3rd ed,}

provision may seem favourable to stepchildren, closer reading of the legislation reveals subtle variations which result in very different judicial outcomes. This exposes significant obstacles faced by New Zealand stepchildren applying for family provision. Both provisions can be generally divided into two parts: eligibility and determination of claims.

A. Eligibility

In New Zealand, s 2 of the Family Protection Act 1955 provides a specific definition of a “stepchild” for the purposes of making a claim for provision under the Act. A stepchild of the deceased is defined as: ⁴

Any person

(a) who is not a child of the deceased, but is a child of – (i) the deceased’s spouse or civil union partner; or

(ii) a de facto partner who was living in a de facto relationship with the deceased at the date of his or her death and in whose favour the Court can make an order under the Act; and

(b) who was living at the date on which the deceased – (i) married that spouse; or

(ii) entered into a civil union with that civil union partner or, (iii)became a party to that de facto relationship.

The present provision is the product of several amendments. Of particular significance was that in 2001, when the definition was expanded to include children of the deceased’s de facto partner.⁵

However, status as a qualifying stepchild under s 2(a)(ii) is tenuous. Not only must the child’s parent qualify as a “de facto partner” eligible for provision under the Act, but the child will only be eligible if his or her parent was “living in a de facto relationship with the deceased at the date of his or her death”⁶. Thus we see how easily the “de facto stepchild” status may cease: the child of a predeceased or separated de facto partner is outside the definition, regardless of the nature or duration of the prior relationship. There is still a substantial advantage for stepchildren of those in relationships formalised by legal marriage

LexisNexis Butterworths, 2009) at [572, 15.1]

^{4 Family Protection Act 1955, s 2(1)}

⁵ Family Protection Amendment Act 2001 (2001 No 8), s 5(1)

^{6 Family Protection Act 1955, s2(1)(a)(ii)}

or civil union. However, this may not be so when considering s 2(1)(b). While there is yet to be a case which tests this section, it is possible to envisage a situation in which a married couple separates but does not divorce. During the separation period, one spouse could conceive a child with another. If the marriage were subsequently renewed, a “stepchild” would now exist who was not “living” at the time of the marriage. Somewhat bizarrely, if we apply an analogous set of facts to a de facto relationship, the child would probably still qualify as a stepchild under s 2. The de facto relationship would cease upon separation and any reconciliation would be the beginning of a new relationship.⁷ In Bourneville v Bourneville⁸ the Court acknowledged that not including periods of separation failed to make de facto relationships equal to that of a marriage. However, the application in that case was refused on the basis that the reconciliation and subsequent marriage following a period of separation of eight months constituted a new relationship, rather than a continuation of the previous de facto relationship from February 1996 until January 2000.⁹ In contrast to New Zealand, the word “stepchild” appears nowhere in the New South Wales Act and the ordinary legislative meaning of “children” does not include stepchildren.¹⁰ Stepchildren must instead endeavour to establish eligibility under the widely encompassing catch-all phrase “dependants” of s 57(e).¹¹ However, as will be discussed, the lack of specific provision for stepchildren in New South Wales does not necessarily make it harder for stepchildren to succeed in claims.

To be entitled to claim under the Act, a stepchild in New Zealand must qualify as an “eligible person” under s 3. Section 3(1)(d) provides that a stepchild is only eligible to claim if he or she was “being maintained wholly or partly or [was] legally entitled to be maintained wholly or partly by the deceased immediately before his death.” Judicially this provision has been narrowly construed, and therefore stepchildren seldom qualify.

⁷ Property (Relationships) Act 1976, s 2D(4)(a)

⁸ Bourneville v Bourneville [2009] NZFLR 69

^{9 Ibid, at [12]}

¹⁰ Barret v Thurling [1984] 2 NSWLR 683 as discussed in: Rosalind Croucher and P Vines Succession: Families, Property and Death: text and cases (3^rd ed, LexisNexis Butterworths, 2009) [51, 2.15]

^{11 Succession Act 2006 (NSW), s57(e)}

The definition of “maintenance” with regards to stepchildren followed in New Zealand is outlined in Re Hilton¹². Anderson J expresses considerable sympathy for the applicant stepchildren, but their claim is unsuccessful as they are unable to prove the maintenance requirement:¹³

The term ‘maintenance’ connotes regular provision to another of, or money towards, that person’s reasonable necessaries and conveniences of life...Unlike widows and children, who are entitled to claim by virtue of status, stepchildren...may not claim except by virtue of a combination of status and actual dependency.

In this context of ‘dependency’, the Judge says “the term could not sensibly be applied to occasional gifts, provision of treats, or extension of hospitality to house or dinner guests.”¹⁴ Although the stepchildren had at times lived with the deceased and received financial assistance, as independent adults they had no grounds to establish they were being “wholly or partly” maintained prior to his death. Most recently, the Family Court followed Re Hilton in W v B.¹⁵ Although decided before Re Hilton, Re Ulrich¹⁶ is one of the few cases where a stepchild has succeeded in meeting the maintenance criteria. The deceased was clearly maintaining his fifteen year old stepson at his death and an award of $7500 was made to enable the stepson to travel overseas to pursue his training as a stud master. Other successful claims have been similarly straightforward; there seems to be limited scope for judicial discretion regarding the maintenance requirement.¹⁷

There is also no definition provided in the Act for the alternative under s 3(1)(d) of being “legally entitled to be maintained”. The issue was considered in Hughes v Savage.¹⁸ The Judge held that the words must be

¹²Re Hilton [1997] 2 NZLR 734

^{13 Ibid, at 345-346}

¹⁴ Ibid, at 346

^{15 W v B unreported, FC Rotorua, FAM-2007-063-624, 26 August 2008, Judge Boshier}

¹⁶ Re Ulrich 20/11/87, CA 125/86

^{17 Re Bush (1983) 1 FRNZ 100 and Re Sepsey 12/8/88, Robertson J, HC Dunedin}

CP65/87: stepchildren who were clearly dependent on the deceased at the time of death were held eligible. They lived with the deceased and were all under 11 years of age. The same results would have been likely subsequent to the decision in Re Hilton.

^{18 Hughes v Savage 9/6/86 Henry J, HC Auckland A1052/85}

given their “ordinary and natural meaning”¹⁹, meaning that a stepchild’s application will fail unless he or she can point to some obligation laid down by law, entitling him or her to receive maintenance.²⁰ A moral obligation alone was held to be insufficient and the stepchild was not entitled to claim. This was despite the deceased having come by most of her estate by virtue of survivorship of the child’s parent. The Judge suggested that evidence of either a “statutory” or “contractual” obligation²¹ would be required for an applicant step child to qualify for legal entitlement to be maintained. Such obligations could be a statutory declaration or a voluntary agreement under s 99 Child Support Act 1991.

As discussed in Re Hilton, it is really the requirement that maintenance be “immediately before” the deceased’s death that places the most severe limitation on stepchildren, particularly adults, in New Zealand. A child could have been provided for and maintained for his or her entire childhood. Once independent (for example married or flatting), children are no longer entitled to claim. This reinforces the superior status that natural children (entitled merely by status) enjoy over stepchildren in New Zealand and exposes one of the major differences between the legislation here, and that in New South Wales.

The Family Provision Act 1982 of New South Wales was last year repealed by the Succession Amendment (Family Provision) Act 2008. The relevant sections are now found in the Succession Act 2006 under “Division 1: Application for Family Provision Orders”. As mentioned above, there is no specific provision made for stepchildren. They are explicitly excluded from being a “child of a domestic relationship” by s

57(c), but they may qualify under s 57(e) as: ²²

A person

(i) who was, at any particular time, wholly or partly dependent on the deceased person, and

(ii)...was, at that particular time or any other time, a member of the household of which the deceased person was a member.

¹⁹ Ibid at 2 [2]

^{20 Ibid at [3]}

²¹ Ibid

^{22 Succession Act 2006 NSW, s 57(e)}

The provision shares similarities with its New Zealand counterpart, but also has several significant differences. While legislative amendments in Australia have, to some extent, recognised the evolving definition of a “family”, New South Wales has so far avoided granting stepchildren status allowing them to automatically gain eligibility for family protection, such as that reserved for a spouse or natural child. There is a prevailing view that because the “step” relationship is one of affinity, not blood, eligibility should be proven based on circumstances, in particular the applicant’s relationship and history with the deceased. Thus, the solution adopted in New South Wales was a “catch all” group description based on “dependency” and “household membership”. In a society of evolving norms and values, such a provision reflects a desire to avoid inflexible situations resulting from an exhaustive list of eligible persons and to make eligibility “reflect circumstances, not status”.²³

There has been criticism of this position. It is argued that the increasing number of divorces in modern Australia results in a higher occurrence of remarriages, inevitably creating greater numbers of stepchildren. In a society where the modern family structure frequently includes children from previous relationships, it has been recommended that stepchildren be granted equal status to natural children in succession law.²⁴ However, although the New South Wales approach has been criticised, judicial results have proven the current test to encompass a wide range of successful applicants, stepchildren included.

To gain eligibility under the New South Wales provision, stepchildren must essentially satisfy a dual test: dependency and household membership at the same point in time. Neither element has a definition provided in the Act and there has thus been substantial judicial discussion of what they mean. The difference in the volume of cases examining the meanings of “dependence” or “being maintained” in Australia and New Zealand respectively is evidence of the differences in eligibility between the two jurisdictions. The Australian provision grants the courts a far greater level of discretion, thus allowing greater flexibility and enhancing a stepchild’s chances of establishing eligibility. Because stepchildren in New South Wales are not immediately disqualified if they have not been dependent on the deceased

²³ Rosalind Croucher and P Vines Succession: Families, Property and Death: text and cases, (3^rd

ed, LexisNexis Butterworths, 2009) 88

^{24 K Mackie “Stepchildren and Succession” (1997) 16 UTLR 27 at 33}

immediately before death, the cases have been able to provide more in- depth consideration of what it is to be “dependent”.

Whether or not a person is dependent on or being maintained by another, whether totally or partially, is a question of fact.²⁵ “Partly” does not mean “substantially” but rather “more than minimally” or perhaps “significantly”.²⁶ Furthermore, dependency may manifest itself in several different forms, be it financial, emotional or in the provision of accommodation. The most recent discussion of dependency in New South Wales is Carragher v Crook.²⁷ The case involves an application for provision by an adult stepdaughter. Interestingly, the facts are very similar to those in the New Zealand case Re Hilton, however the outcome is very different. Carragher also confirmed Ball v Newey²⁸ in which “dependent” was found to be “the condition of depending on something or on someone for what is needed”. The plaintiff succeeded as being partly dependent on the deceased “certainly for many years of her childhood and probably until her marriage, although no doubt her dependence diminished in the latter years of this period.” The Hilton stepchildren certainly did not succeed with such an argument under New Zealand statutory requirements. In New South Wales, emotional dependency alone has been deemed insufficient in several cases.²⁹ In McKenzie v Baddeley³⁰ it was held that there must be “financial, economic or material dependency, not a mere emotional dependency”. However, in Williams v Legg³¹ the Court pointed out that the absence of financial dependence does not preclude a case for dependence. In many cases, it will be the provision of accommodation that establishes dependency if infrequent payments or monetary gifts are not enough to prove one is financially dependent.

In respect to stepchildren and grandchildren, the question has arisen as to whether they are dependent on the deceased or their parent if all are

²⁵ Petrohilos v Hunter (1991) 25 NSWLR 343 at 346

²⁶ McKenzie v Baddeley (NSWSC unreported, 3 December 1991) as discussed in Carragher v

^{Crook [2009] NSWSC 191 at [45]}

²⁷ Carragher v Crook [2009] NSWSC 191

^{28Ball v Newey (1988) 13 NSWLR 489}

²⁹ Benney v Jones (1991) 23 NSWLR 559 and McKenzie v Baddeley NSWSC unreported, 3

^{December 1991, as discussed in Carragher v Crook, above n 27 at para 43, 45}

³⁰ McKenzie v Baddeley NSWSC unreported, 3 December 1991

^{31 Williams v Legg (1993) 29 NSWLR 687}

staying with the deceased. Sherborne Estate³² concerned a grandchild, and Palmer J stated at paragraph 41 that dependence must be “direct and immediate”. Occasional or even frequently made gifts will not be enough. It must be shown that the testator “clearly assumed a continuing and substantial responsibility for the grandchild’s support and welfare”.³³ In that case, a period of three months provision of accommodation was found to be insufficient. The defendant in Carragher v Crook relied on these principles to submit that there was no dependency available as the plaintiff’s mother was still responsible for supporting the plaintiff when she was under 18 years of age. However, the Judge found that a later period of four months, during which the adult plaintiff moved home with two young children after her relationship broke down, met the dependency requirement. The accommodation and support provided could not be described as minimal or insignificant and was of substantial benefit to the plaintiff. The plaintiff’s “on-again-off-again” reliance on the deceased in Carragher v Crook is almost analogous to that of the stepchild Rachel in Re Hilton, where it was found that the “facts simply [did] not amount to maintenance in any reasonable sense of that term”.³⁴ Thus, while parallels can be drawn between the New Zealand and the New South Wales definitions of “maintenance” or “dependency”, the applications are quite different, primarily due to the far more stringent requirement of proximity in the New Zealand provision.

Once the dependency requirement is met, New South Wales stepchildren must satisfy the second limb of the eligibility test: that they were “part of a household of which the deceased was a member”.³⁵

Household membership and dependency need not have occurred concurrently and should not be confused with “provision of accommodation”.³⁶ In Marning v Staniforth³⁷ Hodgson J commented that “prima facie there must be some element of residence of the two people [that are] concerned, in the same house.”³⁸ There is significant

³² Sherborne Estate [2005] NSWSC 593

³³ Ibid at [41]

^{34 Re Hilton [1997] 2 NZLR 734, p 347}

³⁵ Succession Act 2006 (NSW), s 57(e)(ii)

^{36 Carragher v Crook, above n 27, at [39]}

³⁷ Marning v Staniforth SC(NSW), Hodgson J, Eq 3150/85, 25 March 1987, unreported

^{38 As discussed in Rosalind Croucher and P Vines Succession: Families, Property and Death:}

text and cases, (3^rd ed, LexisNexis Butterworths, 2009) 83, 2.48: The applicant was the stepson of the deceased. After the deceased married the applicant’s father the applicant

emphasis placed on duration of household membership, as a person living in a household should share some bond with other members of the household.³⁹ In Munro v Lake,⁴⁰ a stepdaughter who stayed only on weekends for several years with the deceased was held to not be part of a household as there was no continuity and permanency of mutual living arrangements. Regular visits will not suffice, but being absent from the home for some temporary or special purpose is acceptable⁴¹, and a person is capable of being a member of more than one household⁴². In Carragher v Crook, the plaintiff spent several holidays in the deceased’s household and lived with the deceased and her mother for periods of three to four months. The Judge found at paragraph 37 these did not satisfy the test laid down by McLelland J in Munro v Lake of “demonstrating continuity and permanency of mutual living arrangements”. However, there was also a period of eighteen months during which the plaintiff lived with the deceased as a teenager with negligible income. The Judge held that she was a member of the household at that time. While depending largely on financial support, this outcome demonstrates how broad the New South Wales provision is compared to that in New Zealand: while there is an extra element to prove, both are construed liberally and in the absence of the “immediacy” condition that New Zealand stepchildren face, those in New South Wales have a far easier road towards gaining eligibility for provision. If applicants have been members of a household with the deceased at any stage of their lives and can also prove dependency at that time, or any other time, they will be eligible.

B. Principles to be applied in determining cases

Once eligibility has been established, both New Zealand and New South Wales courts move on to determine the outcome of the application, namely what provision, if any, should be made. As will be

never stayed a night in the house in which his stepmother lived. There were shopping excursions or fishing outgoings on the weekends, but the applicant lived with his great aunt rather than with his father and stepmother. Hodgson J held that he had never been part of a household of which the deceased was a member.

^{39 In Kingsland v MacIndoe [1989] VR273 39 weeks was not enough but 18 months in}

Carragher v Crook [2009] NSWSC 191 sufficed.

^{40 Munro v Lake unreported, NSWSC, 8 February 1991}

⁴¹ Ibid, as discussed in Carragher v Crook, above n 27, at [37]

^{42 Conlon v Public Trustee [2002] NSWSC 153, 11 March 2002 at [26]}

discussed, the question which arises at this stage is whether the claims of eligible stepchildren should be treated differently than those of natural children who are eligible as of right. In particular, is the deceased’s moral duty towards them the same?

New Zealand and New South Wales employ similar approaches in determining whether an order for provision should be made, and what this provision should be. A “moral duty” owed to the stepchild must be established in both jurisdictions. The New Zealand Family Protection Act 1955 s 4(1) establishes the Court’s discretionary power to intervene in the terms of a deceased’s will if “adequate provision is not available for the proper maintenance and support” of the claimant. Historically, this approach has evolved greatly from the Act’s original purpose to relieve destitution and avoid dependency on the State. Where stepchildren are eligible, the Williams v Aucutt⁴³ test of a broader meaning of “proper maintenance and support” based not only on “financial provision to meet economic needs” but on moral duty to recognise family membership and importance in the deceased’s life will apply.⁴⁴

However, this approach was formulated in the context of claims made by adult children. A stepchild cannot rely on the primacy of the natural parent-child relationship. Rather, “a stepchild’s need for maintenance and support will depend on whether the child will be supported by his or her natural parents and whether the stepchild’s relationship with the deceased was sufficiently close to give rise to a moral duty to provide for the stepchild”.⁴⁵ As was confirmed in Lynch v Lynch: ⁴⁶

It is well accepted that the Court can interfere with a distribution only to the extent necessary to remedy a breach of moral duty. The Court of Appeal in Williams v Aucutt [2000] NZCA 289; [2000] 2 NZLR 479 reminded the Courts that a finding of need does not permit the Court to rewrite the will (or in this case, amend the distribution) but merely to make such adjustments as will be necessary to meet the moral claim, having regard to the competing claims.

⁴³ Williams v Aucutt [2000] NZCA 289; [2000] 2 NZLR 479

^{44 Ibid, see full test outlined by Richardson P at [52]}

⁴⁵ Brookers Family Law: Family Property, (Brookers, 2008) 4-299 4.10, (updated 14/6/10)

^{46 Lynch v Lynch (2006) 26 FRNZ 358 at paragraph 22}

Commentators in New Zealand have suggested that even if a moral duty is established, it is likely to be less than the duty owed to a natural child or even grandchild⁴⁷. However, there are very few cases in which the Court has had the opportunity to consider an eligible stepchild’s claim and each is to be “determined on its own facts”.⁴⁸ In Re Bush⁴⁹, the judge’s primary concern was to resolve the competing claims of the deceased’s widow, his stepdaughter and his natural children. Rather than making provision for the eligible stepdaughter herself, he awarded

^{$51,000 to the widow on the assumption that she would care for her}

daughter, thus avoiding the issue of competing claims between the stepchild and natural children. Re Ulrich⁵⁰ noted that no cases had yet been reported which had examined discretion in such claims. It was argued that a restrictive interpretation of the word “maintenance” must be applied to stepchildren, as the moral duty is less. The Court refused to accept this argument saying that once the status of a stepchild as a claimant has been established, relief should be granted in accordance with the ordinary principles laid down with regard to granting relief under the Act.

However, the Court still placed significant emphasis on the existence of a relationship of support, affection and maintenance between the stepson and the deceased. Furthermore the Court took into account the young age of the applicant and the absence of any financial assistance derived from his natural father’s estate. Later cases appear to support the concept that while eligibility does not automatically give rise to a moral duty being owed to a stepchild, if he or she can then prove the existence of such a duty, equal treatment to that of a natural child will be granted. The testator in Re Sepsy⁵¹ intended all three children (one child of the marriage and two stepchildren) to be treated equally. He had made clear, equal provision for them in his will. However, not realising that a subsequent marriage revokes an existing will, he died intestate and, under the provisions of the Administration Act, stepchildren are not entitled to succeed. The Court looked at the circumstances of the relationship, concluding that the testator was the stepchildren’s effective father, they had lived with him from a young

⁴⁷ Brookers Family Law: Family Property, (Brookers, 2008) 4-301 4.10, (updated 6/6/08)

⁴⁸ Lynch v Lynch (2006) 26 FRNZ 358

^{49 Re Bush (1983) 1 FRNZ 100}

⁵⁰ Re Ulrich 30/5/86, Ellis J, HC Hamilton A214/81

^{51 Re Sepsy12/8/88, Robertson J, HC Dunedin CP65/87}

age and the previous will had instructed equal division between the three children. Great emphasis was placed on the clear evidence of the testator’s intentions to provide for his stepchildren. As was done in Re Hilton, s 11 of the Family Protection Act 1955 provides that the Court may have regard to this: the testator’s reasons for not making provision for his stepchildren because he felt they had reached the age of independence served as “useful confirmation of the non-maintaining nature of his relationship with his step-children near the end of his life”.⁵² In Re Sepsy, the sum was not large and the needs of the two stepchildren were found to be no different to those of the natural child. Thus the Court was satisfied they were permitted to make orders equally.

Because the narrow maintenance requirement so often disqualifies a stepchild applicant, there are few cases revealing the Court’s position of competing claims between stepchildren and natural children. However, those we do have confirm that a stepparent does not have the same automatic moral duty towards a stepchild, as towards a natural child. There are indications that stepchildren may be treated equally to natural children once they have met the stringent test of eligibility and once moral duty is established. However, the cases still suggest that financial need is a key criterion for a stepchild’s case. The difference in moral duty owed to stepchild and child will be most apparent in adults: an adult stepchild will struggle to prove the maintenance requirement and thus moral duty will not even be considered.

Under the New South Wales Succession Act 2006, the Court may make an order for provision for “maintenance, education or advancement in life” of the eligible person, having regard to the facts known by the Court at the time⁵³. Section 60 provides the list of factors that may be taken into account at any stage in considering a family provision claim. However the Court is not limited to only these factors.⁵⁴ The current approach of the Courts taken in Carragher v Crook is the two-stage test laid out in Singer v Berghouse.⁵⁵ In determining the first stage, an assessment is made of whether the provision (if any) made was adequate or what was the proper level of maintenance appropriate in

⁵² Re Hilton [1997] 2 NZLR 734, p347

^{53 Succession Act 2006, s 59(2)}

⁵⁴ Nagatomi v Hudson Matter Number 2698/97 [1997] NSWSC 415

^{55Singer v Berghouse [1994] HCA 40 at 209}

the circumstances. Regard is given to: the applicant’s financial position, the size and nature of the deceased’s estate, the relationship between the deceased and the applicant and competing claims. At the second stage, any order made in favour of the applicant is determined. There are some circumstances where the court could refuse to make an order, even if need is found. In Ellis v Leeder⁵⁶ there were no assets from which to make an order without disturbing obligations to pay creditors.

While “adequacy” suggests some basic minimum level of economic support, “proper provision” is more subjective and seems to have more to do with “moral duty”. New South Wales still follows the approach of “moral duty” that was taken by New Zealand in Allardice v Allardice, with Lord Romer restating the moral duty approach in relation to the New South Wales Act in Bosch v Perpetual Trustee Co Ltd⁵⁷: “Their Lordships agree that in every case the Court must place itself in the position of the testator, and consider what he ought to have done in all the circumstances of the case, treating the testator for that purpose as a wise and just, rather than a fond and foolish, husband or father.”⁵⁸ As pointed out by Croucher in Chapter 15, “this approach has permitted an extremely wide range of factors to be considered by the court, including the needs of the applicant, the size of the estate, the means of the applicant and the extent of competing claims”. In Permanent Trustee Co Ltd v Fraser (CA NSW 1995 unreported) the Court concluded: “The moral duty test remains ‘a useful yardstick’ and a ‘convenient factual test’”. Fletcher v Fletcher [2007] NSWSC 728 confirmed that moral duty is still relevant in determining the proper level of maintenance appropriate in the circumstances.

The issue of how moral duty applies to stepchildren is complex. Before any provision can be made in New South Wales, eligible stepchildren must demonstrate some basis for their claim, additional to that required of other classes with automatic eligibility. Section 59(1) provides that if a person is eligible by reason only of being a dependant under s 57(e), the Court must be satisfied that “there are factors which warrant the making of the application”. This area is somewhat confusing. Churton v

⁵⁶ Ellis v Leeder [1951] HCA 44

^{57 Bosch v Perpetual Trustee Co Ltd [1938] AC 463}

⁵⁸ As discussed in Rosalind Croucher and P Vines, Succession: Families, Property and Death:

^{text and cases, (3rd ed, LexisNexis Butterworths, 2009) 583, 15.12}

Christian⁵⁹ produced the objective test at 252 of whether a reasonable person would regard the applicant as a natural object of testamentary recognition “having regard to the circumstances of their relationship with the deceased”. However, in Brown v Faggoter,⁶⁰ it was instead suggested that an application might be warranted if it has “reasonable prospects of success”, a somewhat different and easier test than that in Churton v Christian.⁶¹ In Deven v Neale⁶², referred to in Carragher v Crook, it was pointed out that it is necessary to look at the relationship over the whole period, not only conduct during a time of “dependency”. This provision has also contributed to the finding of a “moral duty”. Nagatomi v Hudson⁶³ held the application was warranted “[i]f a consideration of these matters leads the Court to the opinion that the plaintiff was brought up and treated as a child of the testator and if all other circumstances show that there may have been a moral duty on the part of the testator to provide for the plaintiff”. In Carragher v Crook the deterioration of the relationship towards the end of the deceased’s life was not in itself enough to disqualify the applicant. The Judge in Carragher concluded that as “the involvement was that which one would normally show towards a natural child”, he was satisfied that on a “traditional basis...there [were] factors warranting the making of the application.”⁶⁴ The cases demonstrate that if eligibility has been established, satisfying s 59(1) is relatively straightforward.

Once proven, these factors will give the applicant the status of “a person who would generally be regarded as a natural object of testamentary recognition by the deceased”.⁶⁵ Ken Mackie discusses the different treatment of stepchildren and natural children in his article “Stepchildren and Succession”.⁶⁶ He notes that the general approach of the courts has been that “all things being equal except the actual relationship that exists...it would be difficult to justify a substantially different provision being made in the case of a stepchild on one hand, and a natural child on the other.”⁶⁷

⁵⁹ Churton v Christian [1988] NSWCA 23; (1988) 13 NSWLR 241

⁶⁰ Brown v Faggoter (CA), 13^th November 1998

^{61 As discussed in Carragher v Crook [2009] NSWSC 191 at [53]}

⁶² Deven v Neale [2009] NSWCA 54

^{63 Nagatomi v Hudson 2698/97 [1997] NSWSC 415}

⁶⁴ Carragher v Crook [2009] NSWSC 191 at [63]

^{65 Re Fulop Deceased (1987) 8 NSWLR 679 at 681}

⁶⁶ K Mackie “Stepchildren and Succession” [1997] UTasLawRw 4; (1997) 16 U. Tas. L. Rev 22 at 37

^{67 Hoggett v Perpetual Trustees and National Executors of Tasmania Ltd, Tas Unreported, 14}

However, as is evident from the New South Wales cases, in order for “all things to be equal”, it is necessary to prove the strength of the “step” relationship. Fletcher v Fletcher⁶⁸ recently confirmed the statement made in Benny v Jones⁶⁹ that the wording of the statute gives “a very clear indication that an eligible person within par(c) and par(d) must show a moral claim on the estate before an order can be made; ...this is the same thing as saying that the deceased person must have had a moral obligation to that eligible person.” Interestingly, Fletcher v Fletcher also approved at paragraph 120 that “the bare fact of parenthood [alone] does not generate a right”: the duty to make provision for natural children must also be proven on the facts of the case. This highlights a subtle difference in the application of the New Zealand and New South Wales Acts. In New Zealand, natural children are eligible and are owed a moral duty as of right. Stepchildren must prove eligibility and must prove the existence of a moral duty. In New South Wales, eligibility is given to natural children as of status, while stepchildren must prove eligibility and the existence of factors warranting the making of the application. Proof of moral duty is required by both. This perhaps suggests there is a lesser emphasis placed on the primacy of the parent- child relationship in New South Wales in determining the scope of moral duty.

C. The changing family

So should the moral duties owed by a deceased to his or her stepchild be equal to that owed to a natural child? Should parental moral obligations towards stepchildren exist at all? It has been argued that giving stepchildren equal status to that of natural children under family provision law could lead to the abuse of a deceased’s moral duty to provide. A stepchild would have the potential to accumulate multiple stepparents within his/her lifetime and thus succeed in a plethora of provision claims, regardless of the relationship with the deceased. This seems anomalous with the concept of moral duty. There is also significant strength in the argument that the “step” relationship is one of affinity, and thus the ability to claim should be determined by the

March 1989, No 14/1989

⁶⁸ Fletcher v Fletcher [2007] NSWSC 728

^{69 Benny v Jones (1991) 23 NSWLR 559 at 569}

circumstances of the relationship, and not granted as of right.

Ken Mackie discusses one pertinent situation that has consistently emerged in cases concerning stepchildren and raises serious moral questions with regards to the rights to family provision for stepchildren. This is where the natural parent has died, and either by will or the law relating to intestacy, the stepparent takes the entire estate by virtue of survivorship. The stepparent then makes a will excluding the child or, if there is intestacy, the stepchild has no rights. Stepchildren have been successful in claiming provision in this situation in several cases in Australia and in England⁷⁰. However, in New South Wales, such a moral obligation alone was insufficient to overcome the statutory requirements. In New Zealand also, the stepchild in Hughes v Savage⁷¹ was held ineligible despite the deceased’s estate primarily consisting of assets from the applicant’s deceased parent’s estate. Where a now independent applicant has no natural parents alive, this seems very unjust: an ineligible stepchild is left with no rights to any provision at all. Circumstances change, and this situation seems utterly inconsistent with the original purpose of such legislation, which was to avoid people casting dependants on the charity of the state.

Although similar to the New South Wales legislation in many respects, the New Zealand Family Provision Act 1955 is inconsistent and this creates difficulties for stepchildren. This is due to the requirement that maintenance be occurring “immediately” before the deceased’s death. The legislation does not adequately cater for an independent adult whose stepmother or stepfather has been the effective parent for most of his or her life. This is unjust as the Re Hilton case shows. The superior position that self-sufficient natural adult children have in such circumstances does not seem justified. The unquestioned eligibility status given to grandchildren under the New Zealand Act also appears inconsistent. While no one would deny that a special bond often exists between a grandchild and grandparent, stepchildren would surely have a greater need for family provision? Grandchildren are far less likely to be dependent on the deceased and will often be provided for by their own parents. In New South Wales grandchildren are still required to prove “dependency” although they do not have to prove household

⁷⁰ K Mackie “Stepchildren and Succession” [1997] UTasLawRw 4; (1997) 16 U. Tas. L. Rev 22 at 38

^{71 Hughes v Savage 9/6/86 Henry J, HC Auckland A1052/85}

membership. Despite the fact that this legislation has been criticised in Australia as being too favourable towards grandchildren, this can be seen as a better reflection of the nature of the grandparent/grandchild relationship.⁷²

Findings from a study by Statistics New Zealand show that in 1971 about one in six marriages involved the remarriage of one or both partners. By 2002, this had risen to just over one in three of all legal marriages. Divorcees accounted for 90 per cent of people who remarried in 2002, as opposed to 67 per cent in 1971.⁷³ This substantial increase in the proportion of “divorcee remarriages” as well as children of partners in de facto relationships results in an obvious increase in the number of “stepchildren” in New Zealand. Stepchildren should not be granted equal status to natural children and there is a strong policy argument that stepchildren should have to prove eligibility and provide evidence of a dependent relationship (at some stage) with the deceased. However, in a country where there have been significant changes in the dynamics and structure of the “family” since 1955, the statutory requirements for proving maintenance by the stepparent immediately prior to his/her death to be eligible appear to be too narrow.

Conclusion

Taking these considerations into account, I believe the New South Wales legislation more successfully recognises the place of a stepchild in a deceased’s life and grants provision where it is required. Family provision legislation creates an inherent moral duty to provide and the New South Wales statute possesses the flexibility to recognise a wide range of relationships of a dependent nature, including that between a stepchild and stepparent. It caters for the situation where a stepparent has been the effective natural parent of a now adult stepchild, and the emphasis on assessing the nature of the relationship diminishes the chances for opportunism by “gold-digging” stepchildren. No doubt injustices will still occur, but the legislation so far appears to have been effective for stepchildren of wide-ranging age and circumstances. If the

⁷² RF Croucher “Conflicting Narratives in Succession Law – A review of recent cases” (2006) 14 APLJ 12, [33]

⁷³ Statistics New Zealand, Tatauranga Aotearoa: “Marriage and Divorce in New Zealand”

^{page modified 23 February 2005, accessed April 27, 2009}

New Zealand Family Protection Act 1955 were to undergo minor amendments to remove the restrictive immediacy requirement for maintenance in s 3(1)(d), I believe it too could produce results for stepchildren that are contemporary, flexible and just.