The Law Handbook 2024

910 Section 9: Health, wills and other legal issues affecting older people 1 Spouses and domestic partners (both registered and unregistered), minor or disabled children, assumed and step-children under 25 years of age and former spouses in some cases. 2 Adult children, and assumed children and step- children (the extent to which they are not capable of providing for themselves must be taken into account). 3 Registered caring partners, grandchildren, members of the deceased’s household, and partners of a child of the deceased if the child died within one year of the deceased’s death. These classes must be financially dependent upon the deceased at the time of death and the provision (if any) awarded must be proportionate to the degree of dependency on the deceased. Criteria for a redistribution Not all applicants who feel that the deceased has inadequately provided for them may receive an order from the court. For deaths after 1 January 2015, under section 90A of the A&P Act, only an applicant who is an eligible person as defined in section 90 of the A&P Act is able to bring a claim. For deaths before 1 January 2015, the test applied was whether the deceased had a moral responsibility to make adequate provision for the applicant’s proper maintenance and support (and failed to do so). In both cases, it is vital that an applicant shows a financial need for the support that the deceased should have provided in their will. The applicant’s relationship with the deceased during their lifetime is also important. A challenge will not be successful merely because the will was unfair or unjust in its distribution. Section 91A of the A&P Act sets out the factors the courts have to consider in TFM applications. The provisions of Part IV of the A&P Act apply whether there is a will or not. The legislation directs the court to look to the deceased’s will and the intentions and reasons for making the last will. Principles applied by the court Over the years, courts have devised guidelines in determining what amounts to ‘adequate provision for proper maintenance and support’. The legislation also sets out various criteria (s 91A A&P Act) that the court may consider in evaluating a proceeding brought under the relevant part. Some of the important considerations are: • the estate’s net value, i.e. its size after debts, funeral, testamentary and other liabilities have been deducted (if the estate is not big enough to be redistributed, the action cannot succeed); • the applicant’s age, sex and health; • whether the applicant received any gift, transfer or other provision from the deceased during their life; • how close the relationship was between the applicant and the deceased; • the financial resources of the applicant and other beneficiaries or claimants – an applicant will only be entitled to provision if an economic need for provision can be shown; • the character and conduct of the applicant; • the extent to which, and basis upon which, the deceased may have maintained the applicant; • the applicant’s contribution to building up the estate or contribution to the welfare of the deceased and their family; • the obligations and responsibilities of the deceased to the applicant and other persons; • any prior benefits given to the applicant; • the effect of any order on other beneficiaries under the will. The court has power to refuse the application if, in its opinion, the applicant’s character and conduct disentitles them from benefiting under the provisions of Part IV. Grounds for refusing relief might include violence towards the willmaker, dishonestly dealing with the willmaker, or serious abandonment of obligations to the willmaker. If the court decides to alter the will to make provision for an applicant under Part IV, the provision that the court makes must not be for an amount greater than is necessary for the eligible person’s proper maintenance and support. The distribution of the balance of the estate remains as set out in the will as modified by the court order. The TFM order acts as a codicil to the will. Intestacy Where the deceased does not leave a valid will A person who dies without leaving a will is said to have died intestate and the estate passes to the next of kin according to a special statutory order that is