11/06/2021
Family Provision.
When dealing with family provision claims by adult children, the Court frequently has regard to the following propositions:
1. The relationship between parent and child changes when the child attains adulthood. However, a child does not cease to be a natural recipient of parental ties, affection or support, as the bonds of childhood are relaxed;
2. Ordinarily, the community expects parents to raise and educate their children to the very best of their ability while they remain children; probably to assist them with a tertiary education, where that is feasible; where funds allow, to provide them with a start in life, such as a deposit on a home, although it might well take a different form;
3. The community does not expect a parent, in ordinary circumstances, to provide an unencumbered house, or to set his, or her, child up in a position where she or he can acquire a house unencumbered, although in a particular case, where assets permit and the relationship between the parties is such as to justify it, there might be such an obligation;
4. Generally, also, the community does not expect a parent to look after his or her children for the rest of the child’s life and into retirement, especially when there is someone else, such as a spouse, who has a prime obligation to do so;
5. Plainly, if an adult child remains a dependent of a parent, the community usually expects the parent to make provision to fulfil that ongoing dependency after death. But where a child, even an adult child, falls on hard times and where there are assets available, then the community may expect parents to provide a buffer against contingencies; and where a child has been unable to accumulate superannuation or make other provision for their retirement, something to assist in retirement where otherwise they would be left destitute;
6. If the child has an obligation to support others, such as a parent’s obligation to support a dependent child, that will be a relevant factor in determining what is an appropriate provision for the maintenance of the child;
7. There is no need for an applicant adult child to show some special need or some special claim;
8. The adult child’s lack of reserves to meet demands, particularly of ill health, which become more likely with advancing years, is a relevant consideration; and
9. If the adult child is unable to earn, or has a limited means of earning, an income, this could give rise to an increased call on the estate of the deceased.
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