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8 Other relatives’ support claims

Present law

269 THE PRESENT LAW (Family Protection Act 1955) allows grandchildren of a will-maker, and a parent of the will-maker, in limited circumstances, to make a support claim. Children who are not children of the will-maker cannot claim support at all. The purpose of the Commission’s proposals in this chapter is to abolish the claims parents and grandchildren have under the Act, yet at the same time to widen the categories of people who might claim as “children” in accordance with the proposals set out in chapter 6.

Example 13:

Will-maker is divorced. There is only 1 child of the marriage, Child1, who married in Australia and had a child of his own (Grandchild1) before dying at 35 years of age. Child1 having fallen out with Will-maker, Will-maker never met her only grandchild who grew up in Australia.
When Child1 had left home, Will-maker also became a foster parent for her sister’s child, Child2. Will-maker was the sole provider of care for Child2 – although Will-maker did not formally adopt Child2. Will-maker’s father, Parent, an elderly man, occasionally helped her out by babysitting Child2. Will-maker dies leaving Child2 (aged 15) $5 000 of her $150 000 estate, and the rest to a charitable organisation.

270 Under the Commission’s present proposals, Child2 could claim a lump-sum support award to ensure her maintenance and education until she had completed her tertiary education or reached the age of 25 years. The judge might award her between $75 000 and $100 000. No provision has been included at this stage which would allow Parent or Grandchild1 to make a claim.

271 By comparison, under the present law, Child2 would not be able to make any support claim. Grandchild1 would be entitled to an award and would probably be given between $18 750 and $30 000. Will-maker’s father, Parent, would be able to make a claim and could be awarded a lump-sum (there are too few reported cases to say with confidence how large the award would be, but it could be as much as $50 000).

Alternatives

272 The possibility of a grandchild receiving an award based more on recognition of the relationship rather than an obligation to provide support meeting financial needs cannot be excluded, in view of the fact that the Commission has reached no definite conclusion on the way the law should deal with adult children’s claims. However, for the general reasons given in the previous chapter, the Commission considers there are disadvantages in conferring a right on parents, grandchildren and other relatives to claim

• a fixed share of the will-maker’s estate (see paras 203–210),
• a discretionary award to reward or punish (see paras 211–217), and
• a discretionary award to alleviate their need (see paras 218–222).

273 The difficulties are increased if the court has to weigh the interests of grandchildren against the competing interests of children.

Example 14:

Will-maker left a life interest in his estate (valued at some $800 000) to Widow. The residue was left to his 6 children of 3 marriages; A, B, C, D, E and F. C died before Will-maker, leaving no children. A (who had been left a life interest) died by his own hand some 3 months after Will-maker, leaving 2 children, Aa and Ab. There was no evidence that any family member was in pressing financial need, though some families were better off than others. The scheme of the will was that each of the children was left some of the residue, but in unequal shares. The present value of the shares in the will as at the will-maker’s death was: Widow, 65%; A, 4.45%; B, 1.57%; D, 3.32%; E, 12.95% and F 12.95%.¹³⁹
The lower provision for B was partly due to Will-maker’s wish to provide less for his daughters (B and C) than for his sons. B was on distant terms with her father and had lived overseas. In her favour, though, she had chronic illness and had over-committed herself on a house purchase.
The higher provision for E and F was accounted for by the fact that they were under 25 and still undergoing training; and also by the fact that they were the children of the third marriage, which was the only one during which significant assets were acquired.

274 In a case with these facts,¹⁴⁰ the court (applying the present law) made a number of awards, giving the following present values: Aa, 3.88%; Ab, 3.88%; B, 8.15%; D, 3.88%; E, 3.76% and F, 3.76%. This resulted in significantly more going to A’s side of the family than if he had survived. This was inconsistent with the scheme of the will, and it is highly debatable whether the will-maker was under a moral duty to dispose of the property amongst his family in that way.

275 In the Commission’s view, by contrast, only the widow and E and F have a clear basis for a claim. The widow could claim capital and a certain amount for support (as she did in the case), resulting in provision for her of some 72% of the estate. In view of E and F’s prospects of inheriting from her, which are inconsistent with the general scheme of the will, their share in the estate would be reduced by at least 50%, to say 6% (see Appendix B for priorities between beneficiaries).

276 Aa’s and Ab’s expectations would be reduced to nothing on the death of A. Whether they should have a right to claim, and the form that right would take, depends on which of the options is selected for dealing with adult children’s claims. It will not be pursued further in this paper. But the Commission accepts that if adult children are to have a claim, grandchildren might reasonably have a claim on a similar basis if their parents are: dead, otherwise unable to provide support, or unable to pass on a grandparent’s wealth.

277 Without such a claim, because of the contingencies of life, it may be that, as with the grandchildren Aa and Ab, the will sometimes operates harshly. A child may be left a share by the will, but it is taken away from their family if he or she dies unexpectedly shortly before or shortly after the will-maker. The child’s own children are not qualified to, and so cannot, apply for a support award. In ordinary cases, however, anything which has been given to the child will pass to the child if they die after the will-maker, and they can pass it on to their family. Or there will be a clause in the will substituting the grandchildren for a child who dies before the will-maker. Even if nothing is said in the will, the statutory substitution provision (Wills Amendment Act 1955 s 16) has the same effect. Only in unusual cases, such as Example 13, will the will-maker’s inadvertence be a problem.

Reasons for a proposal for a support claim

278 At this stage the Commission proposes only that, where the will-maker established an on-going nurturing relationship with a child and became responsible for that child, the will-maker’s estate should continue to discharge that responsibility. The Commission suggests that this will achieve a proper balance between certainty and flexibility. Moreover the proposal relies on rules, already established under the Child Support Act 1991 ss 2, 7 and 99, which apply to will-makers during lifetime.¹⁴¹

279 If a will-maker chooses to assume a parent-like responsibility for meeting a minor child’s needs, then the court will be able to make a support award for the child. The amount will be calculated in the same way as the support award proposed for children in chapter 6. Of course, only will-makers who were custodians (the sole or principal providers, or who shared substantially in the provision of a minor child’s ongoing daily care) are likely to have assumed a parent-like responsibility to meet the needs of that child.

280 A will-maker should not be regarded as having assumed an enduring responsibility like that of a parent of a child simply because he or she had a relationship in the nature of marriage with a parent of a child.

281 The Commission has not overlooked cases where property passes to the will-maker from the estate of a partner who has children from an earlier marriage. These children often fairly expect to succeed to their parent’s property through the will-maker. The proposal that the estate of a partner who dies first be able to apply for a property division against the survivor (or, more usually, the survivor’s estate) provides additional protection for these children of the will-maker’s partner who are not children of the will-maker (paras 106–110).

Proposal in detail

282 WHEN CHILDREN WHO ARE NOT CHILDREN OF THE WILL-MAKER

CAN CLAIM

283 This definition, which has been developed in relation to support awards, could also be used to determine who are “children” who might make an adult child’s claim, as discussed in chapter 7. The alternative statutory provisions have been drafted on that basis (see paras 234, 250 and 262).

284 CHILD MAY CLAIM AGAINST TWO SETS OF PARENTS

285 In many cases only one parent or couple will have assumed parent-like support responsibilities for a child. However if both birth and informally adopted parents have assumed parent-like responsibilities to support the child, it may be unreasonable to confine the child’s claim for support to either birth or informally adopting parents. When permitting informally adopted children to claim and assessing the level of support award to make, courts will of course balance a child’s claim against the will-maker with claims against other parents and sources of support.

286 PRIORITY OF CLAIMS OF CHILDREN WHO ARE NOT CHILDREN OF THE WILL-MAKER – Appendix B sets out proposals for resolving the relative priority of support claims competing with other types of claims and with one another.

Other relatives of the will-maker may still claim as contributors

287 Other relatives of the will-maker may claim as contributors. The criteria they need to comply with are set out in the next chapter.