Over time, developments to the testator’s family maintenance (“TFM”) legislation expanded the categories or classes of eligible claimants. In 1936, both New Zealand and Tasmania considered changes to the law to permit claims by ex-nuptial or illegitimate children. Both jurisdictions legislated the issue in 1969. The remaining states and territories legislated the same issue shortly thereafter. Section 4 of the FPA expressly defines “child” as to include “illegitimate child.”
By the end of the 1960s, all states and territories recognised the rights of adoptive children. Adoptive children are expressly provided for in Queensland and Tasmanian family provision legislation.
On 1 January 1973 s60A of the Administration Act 1903 (WA) came into effect by the enactment of the Inheritance (Family and Dependant’s Provision) Act 1972 (WA). Family provision claims could now be made against intestate estates and the arbitrary rules that govern interstate distribution. On 21 November 1984, the Administration Act was amended to remove any distinction between children of “whole or half-blood” for the purposes of intestate succession.
In 1984, New South Wales was the first state in Australia to legislate for de-facto couples by operation of the De Facto Relationships Act 1984 (NSW). The other states shortly followed suit. The rights of partners in same-sex relationships went through a period of significant refinement during the 1990s and early 2000s. They have continued to be treated as more or less equivalent to heterosexual couples.
The various Australian state governments were forced to define issues surrounding the status of children for the purposes ofinheritance disputes. For example children “en ventre sa mère,” (in the womb of the mother), posthumously conceived children and children conceived by medically assisted reproductive technologies were considered by parliament. Western Australia enacted the Artificial Conception Act 1985 (WA), which came into force on 1 July 1995. On 21 September 2002, the act was amended to cater for same-sex couples by the Acts Amendment (Lesbian and Gay Law Reform) Act 2002 (WA).
On 16 January 2013, the Inheritance (Family and Dependants Provision) Amendment Act 2011 (WA) came into force, which amended the FPA to grant step-children and dependent grandchildren standing to apply for an order of increased provision in certain circumstances.
On 19 August 2013, New Zealand legalised same-sex marriage by the Marriage (Gender Clarification) Amendment Act 2013 (NZ). The need for Australia to follow New Zealand’s reforms was hotly debated in the lead up to the 2016 Australian Federal Election. No legislative reform has occurred since the election.
In NSW a ‘dependent member of the deceased’s household’ or a person who had “a close personal relationship” may make a claim. This is to cater for those persons who do not fall within the arbitrary categories of applicants but who were dependent on the deceased by way of non-recognised relationships. For example, cousins who grew up like siblings. Alternatively, aunties and uncles who act as parents to their nieces and nephews.
In 1997, the Victorian parliament abandoned defined classes of eligible applicant altogether by granting an applicant standing if they were “a person for whom the deceased had a responsibility to make provision.” The intention behind the Victorian legislation is to ensure justice of the kind contemplated by Gleeson CJ in Barns v Barns which is not determinative of the status of their relationship.
“…Widening the class is simply bringing the law into greater (although never perfect) accord with social reality, which is messy in so far as people’s relationships do not always coincide with the legal stamps put on them.”
Victoria has since re-introduced defined categories of applicants in an attempt to reduce the number of illegitimate claimants.
Craig Gregson LLM TEP
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- “In 1969 to 1970 Law Reform Commission WA; In 1965, the President of the Law Society of Western Australia approached the Attorney General with a proposal that the Act be amended to extend the classes of claimants to include the mother or father of the deceased and the children of a deceased child of the deceased.” As cited in www.lrc.justice.wa.gov.au/_files/P02.pdf.↑
- See the Administration Act 1903 (WA).↑
- Status of Children Act 1996 (NSW), sections 5 and 6; Status of Children Act 1978 (QLD), s 6; Status of Children Act 1974 (VIC), sections 3 and 4; Status of Children Act 1974 (TAS), sections 3 and 4; Status of Children Act 1978 (NT), s 4; Parentage Act 2004 (ACT), sections 38, 39 and theWills Act 1968 (ACT), s 31A; Wills Act 1970 (WA), s 31, under the part “Illegitimacy”; Family Relationships Act 1975 (SA), s 6.↑
- See Adoption Act 1993 (ACT), Adoption Act 2000 (NSW), Adoption of Children Act 1994 (NT), Adoption Act 2009 (QLD) Adoption Act 1988 (SA); Adoption Act 1984 (Vic) Adoption Act 1994 (WA).↑
- Succession Act 1981 (QLD) s 40 and Testator’s Family Maintenance Act 1912 (TAS).↑
- S60A Administration Act 1903 (WA).↑
- See s12B Administration Act 1903 (WA).↑
- Millbank Jenny; The changing meaning of “de facto” relationships; 2006 1CFL1 Lawbook Co.↑
- Ibid see s13A Interpretation Act 1984 (WA).↑
- Succession Act 2006 (NSW) ss 57(d)–(f); and s3(3) and 3(4).↑
- Administration and Probate Act 1958 (Vic) s 91(1) introduced in 1997 by s 55 of the Wills Act 1997 (Vic), this was later amended by Justice Legislation Amendment (Succession and Surrogacy) Act 2014 (Vic) s 5.↑
- Croucher Rosalind, Law reform as personalities, politics and pragmatics, the Family Provision Act 1982 (NSW): A case study, legal history 2007 Vol 11 at p16 citing commissioner Gressier’s memorandum to the Attorney General of NSW dated 28 November 1978.↑
- Justice Legislation Amendment (Succession and Surrogacy) Act 2014 (Vic) proclaimed on 29 October 2014.↑