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• Why Do The Courts Intervene?
• Reform Of The Law
• Conclusion

7 Adult children’s claims

195 IT IS CLEAR THAT WILL-MAKERS should provide for those children who

cannot reasonably be financially independent (see chapter 6). But should children who have had the opportunity to establish themselves in life also have rights if they are disinherited? Children may currently make a claim for “adequate provision for their proper maintenance and support.”¹¹³ This applies to children of any age. The basis of such a claim is considered in this chapter. It is a matter which was seldom questioned in the law reform reports of the 1970s and the 1980s.¹¹⁴ But it has proved controversial in our own consultations and deserves detailed attention.

196 Some will-makers can be unfairly discriminatory or vindictive when considering whether to provide for children.

Example 10:

Will-maker separated from his wife a year before he died. After gifts of a motor car (to a car club) and personal effects (to his 3 children), he left all his estate to his unborn grandchildren. The children were at that time aged 16, 13 and 11. The court found that Will-maker acted “not for the legitimate purpose of disposing of his estate with regard to moral duty, but . . . [out of] a sense of spite in relation to his wife and children.”¹¹⁵

Example 11:

Will-maker and Wife1 had 3 children: A, B and C. Will-maker and Wife1 separated. Wife1 and the children went to Australia. One year later, child A returned to New Zealand to live with Will-maker, who had entered into a relationship with a woman who became his second wife: Wife2. Wife1 remarried in Australia, and she and her new husband returned to New Zealand with B and C. All of the parties lived in the same household for a while. Will-maker got on well with his son A. By contrast, Will-maker was perhaps upset at B adopting her stepfather’s name. Both B and C disliked Will-maker making disparaging remarks about their mother.
Will-maker made several wills. At first, after small bequests, he left everything to the 3 children equally. Later Will-maker cut out B and C from the residue, the biggest part of the estate, which went to A alone. Will-maker felt that B and C exploited him in self-interest and otherwise ignored him. He thought that they were not speaking to him in the street. He also considered B and C to be part of his first wife’s family.¹¹⁶

197 These are illustrations of ways in which the will-maker may fail to meet ordinary criteria for sensible will-making. Other examples include wills which over-value what a child has done for them, or which ignore children who live in a different city. Other wills symbolise the will-maker’s approval or disapproval of a child’s help, conduct, manner or lifestyle. There are also wills which fail to acknowledge and make amends for the will-maker’s harsh treatment of children during their childhood and adolescence.

198 The reasons for provisions like this can be various: for example, distress at the failure of a relationship, the fickleness of old age, ignorance of a child’s true situation, or hurt or disappointment because of a child’s failure to meet the will-maker’s demands or expectations. However, the underlying causes of unfair wills have to be distinguished from the standards by which one assesses whether a will is fair or not. Unless those standards are known and articulated, there will be problems in knowing when a court is likely to interfere. It will also be hard for the courts to be consistent in devising the provisions which are to be put in place of those made by the will-maker.

199 Under the present law, the courts would find little difficulty in making provision for the adult child in Examples 10 and 11 (para 196), assuming there were no prior claims. The amount of provision made, and the precise reason for settling that amount, are much more uncertain. This uncertainty is compounded when the courts move beyond the (comparatively small) number of reported and unreported cases where the will-maker has clearly been arbitrary. There are many cases where the will-maker has some reason for not being generous, though it is not always a reason approved of by the court.

WHY DO THE COURTS INTERVENE?

200 Courts appear to have before them the following objectives. Any one of them may prove decisive in the particular case.

• To acknowledge the family relationship. The objective here is to symbolise the bonds which ought to exist in the ideal family, and to strengthen them by insisting that the will-maker acknowledge them without regard to the real state of affairs between parent and child.
• To reward the child’s good conduct or compensate the child for the will-maker’s bad conduct. The objective here is to encourage the child to act dutifully to the will-maker, and to compensate the child for defects in its upbringing.
• To protect a child who is in need. The objective here is to help people in need, and to symbolise the family as the source of that help.

201 Two things may usefully be said about these policy objectives. The first thing is that two of them at least (the first and third) draw on “symbolic” values, there being no suggestion that any specific improvement in family life or in the public welfare is necessarily achieved by an award, beyond saving the State the cost of welfare payments. The social effects of what is being done are likely to be speculative. True, symbolism can be important and useful if it is known and acted upon by the general public in ordinary life. However, it is not clear that the present judicial practice is known and acted upon by the general public in ordinary life.

202 The second is that the objectives conflict, even when resolving the most basic family protection issues. Take for example a will-maker who has two children, A and B. A is in need, B is not. Neither has been attentive to the will-maker in the will-maker’s old age. Both have been disinherited. Under the first objective, they would share equally in the estate, or part of it. Under the second objective, neither would get anything. Under the third objective, only A would receive a share. Which of these objectives is to be preferred, according to current practice?

Acknowledging family relationships

203 This approach is certain and clear. It reflects the view that “[c]hildren should not be disinherited unless there are exceptional circumstances, not merely because it is hurtful but more especially because it is tantamount to rejection from the family.”¹¹⁷ It is implicit in this view that will-makers should be required to acknowledge their children by leaving them property on death. Not only that, but will-makers should give each child an equal share.

204 Nevertheless, it is difficult to support an invariable duty to acknowledge children irrespective of their need and their contributions to the well-being of the will-maker. Such a duty cannot directly promote cohesion amongst family members, since an award would take no account of whether the child has been supportive of the will-maker during the years leading up to the will-maker’s death. There is generally no corresponding legal duty on the child’s part to make surplus assets available to the will-maker by way of comfort or support (but see chapter 8). The imposition of any such duty appears to assume a closeness between will-maker and adult child which, when a child is disinherited, will frequently not exist.

205 Not surprisingly, therefore, a child’s need to be acknowledged in a parent’s will has never been endorsed by Parliament.¹¹⁸ The courts also acknowledge that it is not a function of awards under the Family Protection Act to achieve equality.¹¹⁹ No-one with whom we have consulted to date has been prepared to support an adult child’s right to a fixed share of the estate, which seems the logical corollary of the principle of acknowledgement. This is so because if the only entitling criterion is being a child of the will-maker, there can be no ground on which to discriminate between any children. All must share equally in all or part of the estate.

206 It has been suggested to us that, even if equal treatment is not always warranted, there is one special situation which calls for it. This is where the will-maker is both a parent and a step-parent, outlives his or her second spouse or partner and succeeds to all the couple’s property. The stepchild needs to be able to claim so that the combined assets of the couple can be equally (or at least equitably) distributed between the two families. But deciding whether the stepchild should succeed, and to what amount, would put a great burden on the courts, unless the objectives and method of quantification of awards are made much clearer.

207 The Commission’s proposals earlier in this paper (paras 106–110) provide, in our view, a better solution to the problem of stepchildren. They allow the surviving step-parent to retain the property in the meantime. But on the death of the step-parent, the stepchildren can claim in their own parent’s name a division of the partnership property which remains in the step-parent’s estate. Whether they have that right, however, would depend on the terms of their parent’s will, not on the court’s view on whether they should share in the step-parent’s estate.

208 In theory, therefore, the courts are not required to make equal provision for all children, nor has a strong case been made that they should be. In the practice of making awards, however, a different picture emerges. In a significant number of cases claimants have succeeded “purely because they were children of the deceased and had done nothing to disentitle them from an appropriate share of the estate.”¹²⁰ Even where claimants do not establish “need” (in a very broad sense), courts frequently make awards which tend to be equal. This happens even when it is by no means clear that the financial circumstances of the children are substantially the same.¹²¹

209 This is not satisfactory. If acknowledgement of the parent-child relationship is to be the underlying purpose of the new legislation, a system of judicial discretion is not a good way to achieve that purpose. It would be preferable, as has already been pointed out, to allocate a fixed share of the estate to be reserved for children and, if needs be, stepchildren. But it is difficult to give effect to a fixed-share regime in a system in which it is acknowledged that the will-maker’s primary duty is to a spouse or de facto partner and infant children, who have first claims. The adult child’s share can only be taken from what is left over. This diminishes the appeal of the fixed-share regime as a clear and definite provision for children.

210 The best that can be done is to establish a strong presumption that the children of a will-maker are entitled to share equally in what is left over after prior claims have been satisfied. But this would in effect remove any effective testamentary power left to the will-maker. Such an approach would be even more severe that the “legitimate shares” regimes derived from Roman law. It is not surprising, therefore, that neither a fixed share, nor a presumption of equal sharing, has been much supported in our consultations.

Reward and punishment

211 This objective is flexible and corresponds with what many will-makers may wish to do. But whatever the will-maker may (wisely or unwisely) feel on the subject, it has in practice proved very difficult for the court to make the same judgment in the place of the will-maker. When good or bad conduct is identified, it admittedly influences what the courts will do. However, the extent of that influence is unclear.

212 With regard to the conduct of the claimant, courts have never seen this as the primary ground for making or refusing an award under the Family Protection Act 1955. It will be considered only when relevant to other factors the courts take into account.¹²²

213 The courts have often discouraged allegations of wrongful conduct against a claimant. They say it unnecessarily inflames and embitters family relations, sometimes without factual foundation.¹²³ Although a claimant can theoretically be disqualified because of wrongful conduct,¹²⁴ courts have “[b]een reluctant to refuse to make orders on this ground, preferring to regard the conduct of the applicant, not as disentitling, but rather as a circumstance to be considered in determining the quantum of provision made.”¹²⁵ More recent authority would suggest that only the gravest of misconduct directed against the will-maker personally is disentitling.¹²⁶

214 The position with regard to rewarding claimants for services is even less clear. With regard to claimants’ good conduct, courts have said that a claimant’s contribution to the making of the will-maker’s estate is not a sufficient ground to make an award under the Family Protection Act 1955. It can, however, be taken into account where there are other factors justifying an award. In practice, once the threshold requirements of the claim are met, the claimant’s contributions are frequently taken into account to justify substantial awards.¹²⁷ There seems to be no threshold requirement that services themselves be substantial.

215 This approach might perhaps be understandable if there were no adequate statutory right to claim recompense for contributions. But it would still be illogical. If the purpose is to reward someone for services to the will-maker, it is irrelevant whether or not that person is a child, or if they are a child, whether they have fulfilled the other requirements of the Family Protection Act 1955. A better way of dealing with these claims is to provide a separate jurisdiction under which an award can be made to a child or any other person who has contributed to the will-maker’s estate. But that could only apply to significant services, not the small and reciprocal services of daily living. This is proposed in chapter 9.

216 Coming now to the conduct of the will-maker, we can put aside cases where the law already provides legal redress for a parent’s abusive conduct which seriously damages a child.¹²⁸ These complaints aside, we are left with complaints of lesser misconduct. Such misconduct may be perceived as hurtful and the source of a grievance but will not usually give rise to any legal remedy because the law does not impose impossibly high legal duties on parents who may be well-meaning but ineffective.

217 The reasons which have made courts reluctant to provide general legal remedies apply equally to remedies for testamentary claims. Nevertheless, it is sometimes suggested by the courts in family protection cases that a will-maker had a duty to make provision for a claimant in the will by way of “contrition for past neglect.” Similarly, where a parent and child have not been in touch for a very long time, courts have suggested that the parent’s own attitudes may have contributed to the estrangement. Such assessments go too far in attributing blame. This is an area where what constitutes bad conduct is not generally agreed. The court is unlikely to be able to weigh all the circumstances accurately years after the event and without evidence from the will-maker. Family members will find it hurtful to be required to attack or defend the conduct of a parent.

Need

218 This is the usual basis given for family protection laws.¹²⁹ It was also the primary purpose of the original family protection legislation.¹³⁰ But it has proved an elusive concept to define. This is perhaps a consequence of the lack of clearly defined purpose lying behind the jurisdiction. If, for example, the concern of the legislation had been to protect claimants from destitution (or to protect the State from having to meet the cost of supporting them), the term could have been defined in the same way as it is for welfare eligibility.

219 But the purposes are much more diffuse than that. The concept of “need” has been considerably relaxed. Will-makers are now presumptively required to make wills not only to support close family, but also to provide for family inheritance.¹³¹ In a number of cases where claims have been successful, moreover, it seems that the claimant does not “need” support in any economic sense of the word, in fact they may be in a better financial position than the will-maker. Adult children of an earlier marriage may receive substantial capital awards, even though they are less needy than the widow.¹³² Such cases suggest that the courts have extended the jurisdiction far beyond its original purpose.

220 Provision to meet “need” might of course be limited to those persons who were actually receiving support from the will-maker at the time of death.¹³³ During his or her lifetime, however, a will-maker may undertake to provide support for a wide range of people at different times for different reasons. The will-maker may, for example, undertake to support someone as a matter of charity, convenience or friendship to another. It is not safe to infer from the fact that the will-maker is providing support for someone while they are alive that they would want to continue to support that person after death. Nor does the fact of support provide any certain or uniform reason why the will-maker should be obliged to continue that support after death.

Consequence of analysis

221 By considering each alternative objective for the law of family protection, and looking for instances where it is recognised in current judicial practice, we can see that the present law is not based on any consistent view of the matter. Two possible views (acknowledging the child, and rewarding the child for past services) are not, and cannot be relied upon, as the primary objectives of the legislation. Yet they strongly influence the outcomes of cases. A third possible ground (making parents responsible for the needs of their adult children) is given as the principal reason for the jurisdiction. But it is so broadly defined that its effect on the way cases are decided is uncertain. The practice of the jurisdiction is therefore different from any objective which can be advanced for its existence, and is open to the influence of several conflicting considerations.

222 This tends to confirm the view that the legislation, as it affects adult children, is not being applied with consistent principles and defined objectives in mind. Rather, it depends upon judicial views of what is fair in the context of the particular case. This makes it difficult, at least in the view of some of those we have consulted, to advise will-makers on what provisions they might make which will clearly comply with their “moral duty”.

REFORM OF THE LAW

Why the present law needs review

223 Lack of clarity in the underlying objectives of legislation can have serious practical consequences. The present law needs review for the following reasons:

• There are appreciable differences in the awards courts make to adult children.¹³⁴ This makes it difficult to predict what the result of a claim will be. It also makes it difficult for conscientious will-makers to know and comply with the requirements of the law.
• Courts are uncertain precisely why they are altering the will-maker’s arrangements. This makes it difficult to assess whether the court’s distribution of the estate is more commendable than the will-maker’s. The present broad discretion has resulted in the courts being able to choose the reasons why they are altering the will-maker’s arrangements. But the present law does not require the courts to make clear what choices they have made and why.
• At present a very high percentage of adult children’s claims against their parents’ estates succeed.135 These claims can reduce the amount of the will-maker’s property available to meet claims made by:

– the will-maker’s surviving spouse or de facto partner;¹³⁶
– children who cannot reasonably be financially independent; and
– adult children and others who have contributed something of value to the will-maker (see chapter 9).

This can occur even though adult children’s claims are not as clear or strong as these other claims.

224 All the concerns in the last paragraph make it difficult for the Commission to support a provision which merely carries forward the present law and practice. It is clear, in the Commission’s view, that the principles underlying the jurisdiction should be stated more directly. As far as possible, all ambiguities of purpose should be resolved. Unfortunately, however, of the alternatives considered in the remainder of this chapter, no single approach clearly stands out as preferable.

The alternatives are:

• Adult children may claim awards to relieve demonstrable financial need.
• Adult children may claim awards to prevent capricious or vindictive, mistaken, or accidental disinheritance.
• Adult children may claim awards where will-makers have no reasonable grounds for disinheriting them.
• Adult children may not claim awards and courts have no power to intervene at all.

Three limits on options for “second-tier” claims by adult children

225 Before considering these alternatives, we make some general points which would apply to any right an adult child might have to seek further provision under the will, contrary to their parent’s wishes.

226 It is clear, at least, that these claims can seldom if ever have the same force as those of spouses, de facto partners, and young children. Children who have contributed to will-makers’ assets have a right to claim anyway (chapter 9). So if adult children are to have a claim by reason solely of their relationship with the will-maker, then it should be provided for separately, with an appropriate indication of its priority. The Commission proposes three important limitations on the adult children’s claim options which follow. Each of these limitations would, if adopted, reinforce the view that adult children’s claims are “second-tier” claims. Each limitation would also need to be provided for in the Draft Act.

227 The first limitation relates to the priority to be accorded to adult children’s claims. Whatever the test preferred, a new law should indicate when and to what extent an award on an adult child’s claim will be met relative to awards and orders on other claims. What priority should courts accord to awards on adult children’s claims?

228 It will be recalled (para 199) that children’s claims cannot be based on the very precise grounds of policy and principle which support the rights of surviving partners, other contributors to the will-maker’s estate, and dependent children. So the will-maker’s primary duties are to a spouse or de facto partner, infant children, and those who have contributed something of value to the will-maker. An adult child’s award should only be taken from what is left over. Nor is it profitable to look closely at the provision the will-maker has in fact made for first-tier claimants, to see whether it can be cut back to a minimum. There can be no criticism of a will-maker who acts liberally in such matters. So awards for adult children can only operate on the lesser of (a) the award; or (b) the balance after other first-tier claimants/beneficiaries have been provided for by the will-maker or the court.

229 The second limitation is similar in nature. It relates to the property available to satisfy awards made on adult children’s claims. The Commission proposes that to satisfy awards on first-tier claims, courts have powers to bring back into the estate will-makers’ property which is the subject of certain transactions. However, the Commission considers that adult children should not be able to have this property brought back into the estate under these powers to satisfy awards on their second-tier claims. This is because will-makers’ lifetime gifts or other donative arrangements are made to meet the perceived needs of particular beneficiaries as they then appear. It is not incumbent on the living to be even-handed or fair amongst all possible beneficiaries at all times. Overall inequalities as between beneficiaries become final and therefore apparent only when a will-maker dies. Bringing in a particular range of pre-death arrangements, to meet a claim which is not based on a clear testamentary duty supportable on appropriate policy grounds, is likely to unreasonably disturb many transactions which were not unfair or poorly motivated at the time they were made.

230 The third limitation relates to the time within which adult children must make any claim they have. Unlike other claims, the Commission proposes that any adult child’s claim be made within a period of six months from the date of the will-maker’s death. The court should have a discretion in exceptional circumstances to extend this period. Further, the Commission proposes that this discretion to extend the time for making a claim not be available after the final distribution of the estate. The adult child’s claim to fair treatment can result in very substantial amendments to the will provisions. These cannot necessarily be anticipated by the trustees and the beneficiaries, in the same way as a partner’s or a minor child’s claim can. In this context, therefore, the existing law (which forbids claims made after a year from the date of administration, if the estate has been distributed) appears well justified. Indeed, given the simplified procedure that we envisage for making claims (see paras 349–355), we propose even tighter time limits for claims of this kind, so that the possibility of a claim will disrupt the ordinary processes of administration as little as possible.

231 The position as regards the social welfare system needs to be mentioned briefly. If a claim is to be recognised principally on the grounds of financial need, it may be appropriate to allow the Department of Social Welfare to insist that potential claimants take action to enforce the claim or have their benefit refused, reduced or terminated. But otherwise, the reasons stated with respect to partners’ claims (chapter 4, paras 120–129) apply equally strongly here, and the Commission’s initial view is that it should not be compulsory to take legal proceedings. If proceedings are taken successfully, any award would, of course, be treated as an asset or income of the child for welfare purposes.

232 The major options for dealing with adult children’s claims are now considered. Each represents a different way of dealing with the problem of defining the ambit of the legislation:

• OPTION 1 – ADULT CHILDREN MAY CLAIM AWARDS TO RELIEVE DEMONSTRABLE FINANCIAL NEED – Approaches the problem by selecting one of the three objectives of family protection legislation (the alleviation of need) as the principal criterion. (One of the other two objectives discussed in paras 200–222 might have been selected, but for reasons already given these are less likely candidates.)
• OPTION 2 – ADULT CHILDREN MAY CLAIM AWARDS TO PREVENT CAPRICIOUS OR VINDICTIVE, MISTAKEN OR ACCIDENTAL DISIN-HERITANCE – Leaves all three objectives open, but tightens the present law by raising the threshold of concern. It looks for something more than “unfairness” or “breach of moral duty”. The court intervenes where the will-maker has only the most unsatisfactory reasons for the will-dispositions, almost amounting to a conscious abuse of power, or has not revised the will to take into account important changes in the will-maker’s property or the circumstances of beneficiaries under the will.
• OPTION 3 – ADULT CHILDREN MAY CLAIM AWARDS TO PREVENT DISINHERITANCE ON NO REASONABLE GROUNDS – Also leaves all three objectives open, but identifies the reasons which might justify the will-maker disinheriting the children. A will is open to attack only if none of the assigned reasons is adopted by the will-maker.
• OPTION 4 – NO ADULT CHILDREN MAY CLAIM AWARDS AND NO COURT POWER TO INTERVENE – Concedes that the costs of lawmaking in this area (in terms of irrationality and unpredictable results) are not worth any gains that might accrue from conferring a judicial power to interfere with what are perceived to be unfair or arbitrary wills. The adult child’s right to claim is removed altogether.

We have explored these options individually, though it would of course be possible to combine some of them to form a conjoint test to determine the fairness or unfairness of a will. The first three options will be found in legislative form later in this chapter. Option 4 would be legislated for by making no provision at all on this point, in legislation which would replace the Family Protection Act 1955.

Option 1: Claims to relieve demonstrable financial need

Adult children could claim awards to relieve their demonstrable financial need.

233 Under this option the general idea is that it is not appropriate to make provision for adult children solely to foster equal sharing, or to ensure that those who merit recognition should be given it. Still less is the object to appease the strong feelings that children are likely to feel at being left out of a parent’s will. Rather it is to meet financial need.

Example 12:

The will-maker dies, at age 80, leaving 2 children, A and B. Her estate is worth $250 000. She leaves it all to her local church. A and her husband are retired, with their own unmortgaged house, motor car and $20 000 in the bank. B is still working, but is approaching retiring age. He lives in rented accommodation, and has no substantial savings.
Neither A nor B is affluent, but A is reasonably placed while B is not. This suggests that B should be awarded a substantial share of the estate, whereas A should either get nothing, or a much smaller amount.

234 A statutory provision giving effect to this first option might be as follows (if adopted, this optional claim would be additional to the proposed claims in chapter 6 now provided for in Part 3 of the Draft Act: ss 27–28):

1 Child’s need claims

(1) A child of a deceased person may make a needs claim against the estate of the deceased if the deceased has not made adequate provision either in his or her lifetime or on death for that child’s support.

(2) A deceased person has not made adequate provision for the purposes of subsection (1) if the child proves that

(a) the child was in financial need at the time of the deceased’s death and is in financial need when the claim is heard by the court; and

(b) the deceased knew or ought to have known at the time of his or her death of the child’s need at that time; and

(c) the deceased made no provision or inadequate provision to meet the child’s need either in his or her lifetime or on death; and

(d) the child’s need must be met if the child is to have the basic requisites of life.

(3) When assessing what is essential to ensure the child has the basic requisites of life, the court must have regard to

(a) the needs of a person who is in a similar family situation to the child in a family which has access to an average income; and

(b) any special needs of the child, in particular needs relating to health, housing, education and provision of the amenities of life; and

(c) any other resources available, or likely to become available, to the child; and

(d) any other matters the court considers relevant.

(4) The court may make a needs award in favour of a child of the deceased against the deceased’s estate of such amount as the court thinks proper to meet the needs of the child for support.

(5) In subsection (3), family income includes, in the case of a family that includes husband and wife or 2 de facto partners, the income of both husband and wife or both de facto partners.

235 There are difficulties, however, with this approach. A phrase such as “financial need” leaves unanswered the important question, “need for what purpose?”. A variety of purposes might be proposed. The need might be extreme; for example, to ward off destitution. Or it might be significant but not peremptory; for example, a need to find a more suitable house to live in, or to have an operation in a private hospital, or to provide for a comfortable retirement. Or it might be inessential but nevertheless entirely appropriate for a person in the claimant’s position; for example, a need to take an overseas holiday, buy a second motor car or pay for children’s private school education.

236 The provision above can only go a certain distance in defining what kind of need must be established. But it is by no means clear what is the appropriate test to determine whether there is need. As Example 12 shows, it is much easier to compare need between two or more children of the will-maker than it is to apply an abstract standard of need. Moreover, even if one took the strictest test (destitution), it would not follow that the law would be any more logical or better justified. The objective is to prevent people becoming destitute. But it might then be argued, for example, that it is much more efficient for a claimant to seek a welfare benefit and for the State to take the taxation payable by the beneficiaries named in the will (who are presumably more wealthy). This would be preferable to going through an elaborate legal process to get the amount of money required to ward off destitution.

237 If, on the other hand, one proposes a test which covers a wider range of needs, it becomes more difficult to meet the argument that what is being done is something which is optional for the will-maker, rather than something which is a moral (or legal) duty. It is very doubtful, for example, whether a will-maker should be obliged to provide a retirement benefit for children who have had ample opportunity, during a working lifetime, to provide it for themselves but have given priority to other things.

238 This points, it may be suggested, to the nub of the problem. If there are ethical duties owed by a will-maker, they are complex and not confined to any particular degree of need. Will-makers are of course often prepared to support children with needs well beyond the time they became independent. Will-makers may well expect, however, to provide this support on their own terms, and to be able, if they wish, to satisfy more immediate legal and other claims first.¹³⁷ Some may wish to respond to the expectations of their own cultural or ethnic group, which may place less emphasis on individual need, and more on the ability of a successor to use the will-maker’s property to the good of the

whole family.

239 A claim based primarily on economic need would no doubt limit the number of claims and make the present system more manageable. But it would not address the fundamental difficulties which are found within the system and it would cause some anomalies: for example, where there are two claimants, one of whom is marginally below the maximum asset level (wherever that is set) and the other is marginally above it.

240 There is also a real risk of anomaly because of the way in which children change their situation during the will-maker’s lifetime. So, in Example 12, if the will-maker had died ten years earlier, it might have been that A’s husband was redundant, with a mortgaged house and little prospect of work. Or, had the will-maker survived another ten years, it might be that A and her husband have serious illnesses and they need live-in help to manage in their home. So how much A and B get respectively will vary considerably according to their particular circumstances at the time when the will-maker died, a matter of chance.

Option 2: Claims to prevent “capricious or vindictive”, mistaken or accidental disinheritance

Adult children could claim an award to prevent the will-maker from disinheriting a child in a way that is:

• manifestly capricious or vindictive;
• vitiated by a serious mistake of fact about

–the size of the estate at the time the will-maker died,
–the size of the provision made for the child (if any) at the time the will-maker died, or
–the child’s circumstances or conduct; or

• manifestly inconsistent with the will-maker’s wishes, by reason of

–the will-maker’s failure to make a new will in circumstances which have substantially changed since the will-maker’s last will, or
–the will-maker’s unsuccessful attempt to make a new will.

241 This approach is better justified than one based on need. It acknowledges that, once obligations to first-tier testamentary claimants have been met, it is for the will-maker to decide who benefits under his or her will, and in what proportions those people benefit. Excluding children is justified only when the will-maker has, at the time of their death, some reasonable ground for doing so. Even so, the courts should not interfere unless a claimant can cross a high threshold test of unreasonableness, or show that the will departs substantially from the will-maker’s own intentions.

242 The first limb of the test fills an apparent gap within the proposed new legislation. If the Family Protection Act 1955 is repealed and not replaced by some provision protecting adult children, there will be nothing to prevent people making wills which dispose of this part of their estates in a manner which is arbitrary or capricious. They must, of course, have the mental capacity to make a will and not be unduly influenced by others (para 362). But the laws of capacity and undue influence do not require will-makers to meet very rigorous standards of responsible will-making.¹³⁸

243 It might be argued that all these restrictions are an undue fetter on will-makers’ uncontrolled power of ownership of this part of their estates. But the mere fact of ownership does not reasonably carry with it an absolute power to dispose of property on death by will. It has been suggested earlier in the paper that another, and equally valid, justification for that power, is the fact that the will-maker is usually in the best position to judge who of his or her “family” or other associates should receive his or her property. Will-makers who, having met obligations to first-tier testamentary claimants, then exclude a child arbitrarily, may be said not to have exercised the decision-making power in a justifiable and effective way. In this very limited sense, it might be argued that the property “belongs”, in a moral sense, to the family as a whole and cannot be dealt with irrationally.

244 From a different perspective some might argue that to develop a law based on such criteria is to permit the very type of family protection claims – by adult children, other relatives or others – that the Commission has earlier criticised. That is not necessarily so. The purpose of the law would be to ensure that will-makers meet a minimum standard of responsible action before their decisions on passing property to their chosen beneficiaries are given effect.

245 But the first limb of the test presents some concerns. “Capricious” suggests that something was done as a matter of opinion or random choice, rather than in a measured and reasoned manner. As with the language “moral duty”, “capricious” might not be an unsatisfactory criterion in itself if it were shorthand for other well known and understood criteria (paras 47–51). But again here it is not clear that this is so. “Vindictive” dispositions are those made by will-makers who intend to have revenge for an actual or perceived wrong done to them. This suggests that a power to set aside “vindictive” dispositions is – like the second objective (paras 211–217) above – designed to punish and deter will-makers’ wrongful conduct and should also be rejected for the same reasons. This limb also has a significant practical defect, in that it fails to inform the court what arrangements should be substituted for those of the will-maker which are set aside.

246 The words “capricious” or “vindictive” could of course be replaced by others, such as “totally unreasonable” or “without any substantial justification”. But this would not remove the underlying causes of concern which are inherent in this method of approach.

247 The second limb of the test permits the court to deal with cases where the will-maker’s exclusion of an adult child is vitiated by a substantial mistake of fact. The third limb of the test gives the courts a way of dealing with significant changes in the will-maker’s circumstances or intentions since his or her last will was executed. For example, suppose a child is born to the will-maker after a last will was executed. If that was not expected, the will may be worded so that the child is excluded. The child could be included by court order.

248 The second and third limbs are open to the objection that they facilitate provision for adult children only when the will-maker wishes to benefit those children. While useful, on this basis they might be better addressed more generally in a review of the law of wills. Clearly the will-maker’s frustrated intentions, when ascertainable, are the touchstone that will guide the court in making further provision for the child under the third limb. But when the will-provision is vitiated by the will-maker’s serious mistake, the second limb is not necessarily helpful when deciding what provision should be substituted for that made in the will, and the matter cannot be remitted to the will-maker.

249 We have already said that the first and second limbs do not spell out the consequences of will-makers not meeting the minimum standard of responsible action. The result need not be that the court makes its own selection of appropriate beneficiaries (as it does under the Family Protection Act 1955). Instead, any child might on application receive a share of the estate remaining. Like a child’s share on intestacy, it would be (usually) based on equal treatment of all children (failing all else, equity is equality). That share would be based on a proportion of the estate set by the court in each case. The will-maker’s intentions concerning who should benefit from the estate, and in what proportions, would otherwise be followed or preserved as closely as practicable.

250 Statutory provisions to give effect to this second option might state (again if adopted, this optional claim would be additional to the proposed claims in chapter 6 now provided for in Part 3 of the Draft Act: ss 27–28):

2 Claims for provision for children wrongly disinherited

(1) A child of a deceased person may claim provision from the estate of the deceased if the deceased has wrongly disinherited the child.

(2) A child is wrongly disinherited for the purposes of this section if the child proves that provision or lack of provision made for that child by the deceased, whether in his or her lifetime or on death, is

(a) manifestly capricious or vindictive; or

(b) vitiated by a serious mistake of fact made by the deceased about

(i) the nature and value of the deceased’s estate at the time of death; or

(ii) the nature and value of the provision (if any) made by the deceased for the child before death; or

(iii) the child’s financial circumstances or conduct; or

(c) manifestly inconsistent with the deceased’s expressed intentions as to the distribution of his or her estate because of

(i) the deceased’s failure to make a new testamentary disposition in circumstances which have substantially changed since the deceased last made a testamentary disposition; or

(ii) the deceased’s unsuccessful attempt to make a new testamentary disposition.

2A Assessment of provision for wrongly disinherited child

(1) The court may make a provision order against the estate of the deceased in respect of a claim made by a child of the deceased under section 2.

(2) The court is to determine the amount of a provision order under this section in the following manner:

(a) the court is to set aside such proportion of the deceased’s estate as the court thinks appropriate for any child or children of the deceased designated for the purpose by the court;

(b) if a proportion is designated for more than one child, the provision order is, in the absence of special circumstances, to be an amount calculated by dividing the proportion of the deceased’s estate set aside into equal portions for the children for whom that proportion was designated;

(c) an order may take into account any special circumstances that the court considers relevant;

(d) if section 2(2)(b) or 2(2)(c) applies, the court must have regard to the nature of the provision that the deceased intended to make for the child, as far as that can be ascertained and is practicable.

Option 3: Criteria of reasonableness

251 This option requires that an adult child show that the will-maker was moved to disinherit the adult child for insupportable reasons, or for no valid reason at all. This assumes that there are some reasons for making a will which are valid, and other reasons which are invalid. One or other set of reasons needs to be spelt out in the statute. On the whole it is easier to spell out reasons which are sound. If it is established that the will-maker was motivated by one of the reasons stated below, then the will would stand.

A will-maker may reasonably decline to make provision for an adult child on the grounds of:

• Higher obligations to others which must be met instead of providing for the child.
• Will-maker’s dissociation from, or lack of responsibility for, the child.
• Established practices or understandings within the family which preclude provision being made for the child.
• Provision made by or for others in place of the will-maker providing for the child, or provision already made for the child other than by will.

252 Each good reason for declining to make provision could, in a statutory provision, be stated in more detail (in the paragraphs which follow, reasons followed by an * are reasons that the courts have not accepted as sufficient for declining to provide for a child).

253 HIGHER OBLIGATIONS – These might include:

• the greater need of other people for whom the will-maker has assumed responsibility or with whom the will-maker associated;
• contributions made by other persons to the estate or well-being of the will-maker;
• the desire to donate a reasonable proportion of the estate to charitable and other purposes contributing to the public good (whether or not the will-maker had any personal connection with the cause).*

254 WILL-MAKER’S DISSOCIATION FROM, OR LACK OF RESPONSIBILITY FOR, THE CHILD – Reasons for declining to make provision here might include:

• substantial periods of estrangement or lack of family contact between the will-maker and the child, however caused;*
• the child not having any substantial economic need or having had ample opportunity to provide against it;*

255 ESTABLISHED PRACTICES OR UNDERSTANDINGS WITHIN THE FAMILY – Will-makers might also reasonably decline to make provision for a child as a result of:

• arrangements made during the lifetime of the will-maker for the benefit of the will-maker or his or her family, to the extent that these arrangements have implications for provisions in the will;
• any ethnic or cultural practice of a group to which the will-maker belongs;*
• any settled understanding amongst members of the will-maker’s family (irrespective of whether the child is a party to that understanding);
• where the will-maker has acquired property by way of gift or inheritance, the origins of the property and any consequent expectations the will-maker or others may have in respect of the property.

256 PROVISION MADE BY OR FOR OTHERS IN PLACE OF WILL-PROVISION FOR THE CHILD, OR PROVISION ALREADY MADE FOR THE CHILD OTHER THAN BY WILL – A will-maker may justifiably decline to provide for a child in light of:

• any provision (by will or otherwise) which has been made or which is likely to be made in favour of the child by any other parent or person who has assumed parental responsibility for the claimant;
• any provision the will-maker has made (by will or otherwise) for his or her child’s parent, spouse, de facto partner or child.*

257 Requiring will-makers to meet a suggested minimum standard of responsible will-making as judged against these criteria would have advantages. The scheme makes clear that there are a range of reasonable grounds on which conscientious will-makers, having fulfilled their first-tier testamentary obligations, may exclude children from what remains of their estates. It is framed so as to allow limited and consistent intervention to prevent clearly unreasonable or mistaken exercises of will-making power.

258 A provision along these lines deserves serious consideration. But the Commission hesitates to advance such a provision as a preferred option. This option would add a second tier of awards which applied only to the estate which remained after the testamentary claims proposed had been satisfied, and would require will-makers to dispose of that part of their estates relying on at least one valid ground. This is complex and not many claimants would benefit from it. Very few will-makers will exclude a child without some reason which is arguably a tenable one.

259 The principles on which the court is to interfere with a will may prove too vague to apply consistently from case to case (para 198). The grounds of “reasonableness” mentioned above involve matters of degree. They do not lend themselves to a clear declaration that a particular disposition was arbitrary and unreasonable. At best, such a scheme would amount to a right to know and test the will-maker’s reasons for excluding a child. At worst, the scheme would be accepted as an invitation to relitigate the principles on which will-makers should be required to make provision, and the degree to which they should be proved, in each case where a child is disappointed. Should that occur, the clear set of first-tier obligations imposed on will-makers by the Commission’s proposals will be supplemented (and perhaps undermined) by uncertain and very significant second-tier obligations.

260 There are problems also where, in the court’s opinion, the will-maker had grounds to disinherit the child, but in fact relied on grounds which were unreasonable. It is too late to remit the matter to the will-maker, who is dead. So the court would have to overturn a will which would have been properly made if the will-maker had been better advised or more thoughtful.

261 A further problem with this approach is that, while it may help the courts to identify that a child has been unreasonably excluded, it does not give the court much guidance on how the child would have been provided for if the will-maker had acted reasonably. One way of meeting that problem would be to treat the entire will as unreasonably excluding a child and, in respect of a fixed proportion of the estate, to substitute a regime of equal shares for the children affected. But that might result in removing all will-making power, even where the will-maker has good reason for discriminating between the children.

262 A provision to give effect to this third option might be as follows (if adopted, this optional claim would be additional to the proposed claims in chapter 6 now provided for in Part 3 of the Draft Act: ss 27–28):

3 Claims for provision for children disinherited without reasonable grounds

(1) A child of a deceased person may claim provision from the estate of the deceased, and the court may make a provision order, if the child proves that the deceased has without reasonable grounds made no provision or insufficient provision for the child.

(2) When determining a claim under this section, the court must have regard to any one or more of the following grounds on which a deceased may reasonably decline to make any provision, or such provision as would otherwise be regarded as sufficient, for the child:

(a) the deceased’s higher obligations to other persons than to the child;

(b) the deceased’s dissociation from, or lack of responsibility for, the child;

(c) established practices or understandings within the deceased’s family;

(d) provision made by or for other persons instead of provision being made by testamentary disposition for the child, including provision made by the deceased for the child’s parent, spouse, de facto partner, or child;

(e) provision made for the child otherwise than by the deceased’s testamentary disposition, including provision made or likely to be made in favour of the child by any other parent or person who has assumed parental responsibility for the child.

(3) The deceased’s obligation to other persons (referred to in subsection 2(a)) may include

(a) a higher need of other persons for whom the deceased had assumed responsibility or with whom the deceased associated, or

(b) recognition of contributions made by some other person to the estate or wellbeing of the deceased, or

(c) a desire to donate a reasonable part of the deceased’s estate to charitable or other purposes for the public good (whether or not the deceased had any personal connection with those purposes).

(4) The deceased’s dissociation from, or lack of responsibility for, the child (referred to in subsection 2(b)) may include and take into account

(a) substantial periods of estrangement or lack of family contact between the deceased and the child, however caused, or

(b) the child’s lack of any substantial economic need, or

(c) opportunities that the child has had to provide against economic need.

(5) The established practices or understandings within the family of the deceased (referred to in subsection 2(c)) may include

(a) arrangements made by the deceased during his or her lifetime for the benefit of the child and the child’s parent, spouse, de facto partner, or child, or

(b) ethnic or cultural practices of a group of which the deceased was a member, or

(c) any settled understanding among members of the deceased’s family (whether or not the child is a party to that understanding), or

(d) any expectations the deceased and other persons had in respect of property that the deceased acquired by gift or inheritance.

(6) The court is to determine the amount of a provision order under this section in the following manner:

(a) the court is to set aside such proportion of the deceased’s estate as the court thinks appropriate for any child or children of the deceased designated for the purpose by the court;

(b) if a proportion is designated for more than one child, the provision order is, in the absence of special circumstances, to be an amount calculated by dividing the proportion of the deceased’s estate set aside into equal portions for the children for whom that proportion was designated;

(c) an order may take into account any special circumstances that the court considers relevant.

Option 4: No power to intervene

Under this option no adult children could claim an award.

263 This option has the advantage of clarity. It is also a recognition that the grounds on which adult children might claim provision from will-makers’ estates do not lend themselves to clear and consistent definition, so that the problem of “unfairness” may be more apparent than real. It can be supported on the grounds that it is generally undesirable to maintain legal rules which are uncertain, which have no defined purpose, and which operate unpredictably. This option is also supported by efficiency considerations. It does not invite lengthy and expensive litigation by providing a law with no clear purpose. This option is based on the conviction that no distribution substituted for a will-maker’s, achieves so much more fairness or promotes social good to such an extent that it justifies the accompanying expense, delay and divisive interference with family life.

264 This option has the advantage of permitting conscientious will-makers to make provision which accommodates and responds to their varied family circumstances better than any law can. It also recognises that the scale of the problem of wills which adult children perceive as unfair does not justify the extensive powers granted to counter them. Powers as extensive and indeterminate as those in the present law, if they applied to the living, would be intolerable. This option also permits a justifiably greater emphasis to be given to clearer and stronger first-tier claims.

265 Yet this option also permits will-makers who are capable of making a will to exclude their children from their estates, perhaps for reasons that others may disagree with, or perhaps for no discernible reason at all. The Commission is aware that the abolition of adult children’s claims would be regretted by lawyers practising in this area who consider that the law produces useful results which they can anticipate. It would also be regretted by a broad range of legal practitioners who see in such claims the virtue that they deal with wills which they consider capricious and vindictive.

266 No statutory provision would be necessary to give effect to this option.

CONCLUSION

267 It appears that, while courts need statute law which provides more direction on how cases should be decided, tighter legal tests based on “need” or “absence of good reason” cannot be unequivocally supported. It may be that in the course of further discussion, one of the options proposed, or some modification of it, emerges as a preferred solution. Alternatively, it may be that the existing law, with all its difficulties, is seen as less unsatisfactory than any of the other options and prevails by default.

268 The Commission considers it is preferable at this stage not to express a view on which course is to be preferred. It welcomes fuller discussion and comment on the options raised and on other ways of meeting the problems discussed in this chapter (paras 224, 232–266).