ON 14 SEPTEMBER 1994, the High Court of Australia delivered Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201; (1994) 123 ALR 481; (1994) 68 ALJR 653 (14 September 1994).
The High Court ruled that the determination of family provision disputes involves a two stage process: per Mason CJ, Deane and McHugh JJ (at [18]).
The first stage requires an assessment as to whether the provision for maintenance under the deceased’s will was appropriate having regard to mattes including “the applicant’s financial position, the size and nature of the deceased’s estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty”. The question for consideration is whether or not the applicant has been left without adequate provision for proper maintenance as well as education and advancement in life?
If it is found that the applicant has been left without adequate provision for proper maintenance, the second stage requires an assessment of what is a proper level of maintenance and adequate provision to make an order in favour of the applicant. The court must be “mindful” that in some circumstances “a court could refuse to make an order notwithstanding that the applicant is found to have been left without adequate provision for proper maintenance”, such as where there are no assets and making an order would affect the testator’s arrangements with creditors.
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