Tasmanian Family Provision Claims
In Tasmania, the Testator’s Family Maintenance Act 1912 provides that specific family members can make a “family provision claim” from the estate if the deceased lived in and owned real estate in Tasmania at the date of death, the applicant believes the deceased’s Will does not adequately provide for their proper maintenance and support. Typically, the applicant must submit a claim within three months following the grant of probate.
An application for provision out of the estate of a deceased person may be made by or on behalf of several individuals, including the widow of the deceased, who may claim for adequate support. Additionally, the children of the deceased are also entitled to seek provision. In cases where the deceased has no widow or children, the deceased’s parents can apply for support. Lastly, individuals whose marriage to the deceased has been dissolved or annulled may apply if they were receiving or were entitled to receive maintenance from the deceased at their death.
Concerning the outcome, the Court has the authority to order various types of provision for the applicant, including a lump sum payment, a life interest in a property, or any other suitable provision designed to ensure adequate support it’s important to note that while the Act provides a framework for family provision applications, it does not guarantee a specific share of the estate or serve as a reward for affection or services rendered to the deceased. The primary aim of the court is to ensure that the applicant receives sufficient provision for their maintenance and well-being.
Adequate vs Proper Provision
Under the Testator’s Family Maintenance Act 1912 (Tas), an applicant must demonstrate that the deceased left them without adequate provision for their proper maintenance and support. The court possesses broad discretion to determine what constitutes an appropriate provision based on the unique circumstances of each case. Generally, those eligible to apply include the deceased’s spouse, children, parents, and former spouses who are entitled to maintenance.
Important Principles
When considering an application, the court considers several essential factors. These include the estate size, the nature of the relationship between the applicant and the deceased, the applicant’s financial needs, and any specific reasons the deceased may have given for their decisions regarding the distribution of their estate.
As explained in Singer v Berghouse [1994] HCA 40, 181 CLR 201 at 208 and applied in Vigolo v Bostin [2005] HCA 11, 221 CLR 191. The Court considers:
- The size and character of the Estate;
- The financial position of the applicant;
- The nature of the relationship between the deceased and the applicant;
Claims by Adult Children
There is no presumption in favour of or against making provision for adult children. Each claim is assessed on its facts (Xiang bht Cao v Tong [2021] NSWSC 44).
An adult child:
- Does not need to prove special need or dependency;
- However, financial needs are only one factor—they do not determine the outcome alone (Chan v Chan [2016] NSWCA 222).
Two-Stage Process
When claiming under s 3 of the Testator’s Family Maintenance Act 1912 (Tas), the Court applies a two-stage approach:
Stage 1: Has the Applicant Been Left Without Adequate Provision?
Moral considerations are not determinative but help the Court interpret the statute and align it with community expectations. As noted by Gleeson CJ in Vigolo, concepts like moral duty remain “valuable currency” in this area of law.
The first question is whether the deceased left the applicant without adequate provision for their proper maintenance and support (s 3(1)). This question involves value judgments and is decided based on the applicant’s circumstances at the time of the deceased’s death, including what was reasonably foreseeable.
The onus is on the applicant to prove this threshold.
The terms “adequate” and “proper” have distinct meanings:
• A small sum may be adequate for basic needs,
• The claims of others who may have legitimate expectations or moral claims.
• But may fall short of being proper, considering the applicant’s lifestyle, the deceased’s wealth, and broader moral obligations (Bosch v Perpetual Trustee Co Ltd [1938] AC 463; Pontifical Society v Scales [1962] HCA 19; (1962) 107 CLR 9).
There is no fixed standard—adequacy and propriety are relative concepts, influenced by age, needs, resources, and social context (Goodman v Windeyer [1980] HCA 31).
Stage 2: What Provision, If Any, Should Be Made?
Following the first threshold, the Court makes a discretionary judgement on what, if any, provision ought to be made from the Estate.
Courts will ask what a wise and just testator would have done if fully informed of the applicant’s circumstances (Bosch).
Importantly:
• The Court is not redistributing the Estate based on fairness alone;
• It is remedying a failure of moral obligation where the Will maker has unjustly excluded or inadequately provided for the applicant. (Blore v Lang [1960] HCA 73).
• The Act responds to moral failure, not legal error.
• The test focuses on what is adequate and proper in all the circumstances, not on what is “fair” or what others received.
• The Court must evaluate the applicant’s claim against the context of the deceased’s resources, intentions, and other obligations.
Muhl v Bailey [2025] TASSC 24
Sandra Muhl applied for further provision from the Estate of the late Nita Eileen Shields under s 3 of the Testator’s Family Maintenance Act 1912 (Tas). Nita died on 21 October 2021 at age 93. The respondent to the application is Nita’s younger sister her Executor.
Under the Act, a child of the deceased is eligible to claim. Raymond and Sheila Shields, who could not conceive then, adopted Sandra. Sheila died in 1980, and in 1982, Raymond married Nita. As Raymond’s adopted daughter, Sandra became Nita’s stepchild and thus qualifies as her child under the Act. The Executor did not dispute this.
The Deceased (Nita Shields)
Nita was born in 1928 and had no children. She was first married in 1952, divorced in 1967, and received a significant (though unquantified) property settlement. 1982 she married Raymond (aka Keith), a retired DVA pensioner. They lived in Melbourne before relocating to Tasmania in 1995. After several moves, both ultimately resided in Medea Park Nursing Home, where Nita remained following Raymond’s death in 2015 until she died in 2021.
The Will and Estate
The deceased’s final Will (12 July 2018) appointed her sister as Executor. The Estate totalled approximately $491,873, with net distributable assets of $481,559.38. Key provisions included:
• $78,418.24 to the Executor (Medea Park Trust Account);
• $50,000 each to three charities;
• $100,000 to the applicant’s brother, Gary;
• $153,141.14 (residue) to the applicant’s sister, Robyn.
The deceased expressly excluded the applicant, stating she did not consider her to be her child, noting limited contact and the applicant’s adoption by Nita’s husband Raymond and his first wife.
The Applicant (Sandra Muhl)
The applicant was born in 1955 and adopted by Raymond and Sheila. Following the adoption, Sheila had two biological children, Gary (1956) and Robyn (1960). The applicant described a loving and inclusive upbringing.
Tension arose in the applicant’s late teens due to Raymond’s strictness, leading the applicant to leave home at 18. The applicant later learned Raymond was having an affair with the deceased, devastating Sheila and leading to alcohol abuse. The applicant resented Raymond’s actions and became estranged from 1974 until around 2010.
After her mother died in 1980, the deceased quickly moved in with Raymond, further straining the applicant’s relationship with him. The applicant declined to attend their wedding. Their estrangement lasted until the applicant reconciled with Raymond around 2010. Although they lived far apart, the applicant visited a few times and maintained regular phone contact until Raymond died in 2015. However, the applicant attended Raymond’s funeral.
The applicant also became acquainted with the deceased during this period, acknowledging a happy marriage and explaining the deceased as kind and welcoming, though she did not attend her funeral.
Disputed Evidence
The Executor claimed that Raymond had disowned the applicant and that the deceased had no contact with her. However, in cross-examination, the Executor conceded that she lacked firsthand knowledge of interactions between the applicant, Raymond, and the deceased.
The applicant’s siblings gave affidavits supporting her account:
• Gary confirmed the estrangement and later reconciliation between the applicant and their father.
• Robyn, who had a much closer relationship with the deceased, confirming that the applicant and the deceased appeared cordial when they were together.
Applicant’s Current Circumstances
The applicant is 69 years old. After leaving home, she and her husband built their life without financial support from their families, which she had not expected anyway. They had three children, the eldest being Jessica, born in November 1974, who has been blind since birth and now suffers additional health problems requiring full-time care. Since 1980, the applicant worked in the couple’s arborist business doing administrative work while raising their children and managing Jessica’s special needs. She also took other jobs once the children were older.
The applicant separated from her husband about 15 years ago but remained in the family home in Aberfeldie, Melbourne, which they bought in 1980. Though not divorced, they reached a financial settlement in December 2021: her husband kept the family business and another property, and the applicant retained the family home and a share of the superannuation. While there is no formal valuation of the house, she estimates it to be worth between $1.5 and $1.9 million and pays rates on a $2 million valuation. As of August 2024, her superannuation balance was about $452,928. She also owns a 1974 BMW worth around $17,000.
The applcant expected to keep working in the business after the financial settlement, but her husband terminated her employment. The applcant retired from a job at Tiffany in Melbourne in December 2021 after 11 years. Though offered other work, the applicant chose not to return to employment, partly to visit a son in Brisbane more often. The applicant’s bank savings fell from $88,500 in December 2023 to around $20,000 by March 2025; now funding living expenses with weekly $500 withdrawals from superannuation and a partial age pension of $450 per fortnight.
The flat where the applicant’s daughter lives while jointly owned by the applicant and her husband is held on trust for the daughter .
The applicant’s annual living expenses were $65,365 (2022–23) and $71,920 (2023–24), including the cost of her first international holiday in a decade. She gave evidence that her home needs significant repairs and upgrades, estimated to cost at least $200,000 over the next 10–20 years. Despite this, she plans to keep living in the home due to emotional attachment and its location near her social network.
The applicant’s health is generally good, but upcoming dental work is expected to cost over $25,000.
The applicant received no gifts or financial support from her parents. Raymond inherited her mother Sheila’s Estate, which included the family home, a car, and an unspecified inheritance from an aunt. Raymond’s 2011 will left everything to Nita. The Court noted the lack of evidence about Raymond’s estate composition, making it difficult to determine how much of the deceased’s Estate was derived from him.
Actuary Corey Plover estimated in a July 2024 report that a 67-year-old Australian woman has an average life expectancy of another 21.66 years. He calculated that to live modestly in retirement (owning a home and being in good health), a single person would need $32,915 per year, or $51,630 for a comfortable lifestyle; this corresponds to lump sums of $435,100 and $682,300, respectively. The Executor didn’t dispute the applicant’s argument that the calculations should not factor in the age pension.
Court’s Findings and Reasoning
Although the applicant was not financially dependent on the testatrix and was not in urgent need, the Court found that she was left without adequate provision for her proper maintenance and support. Given her circumstances, including advancing age, the Court held that she was entitled to a greater financial buffer for contingencies like health issues or home maintenance. The key factors were the testatrix’s moral duty to the applicant and the absence of other competing moral claims on the Estate.
The respondent argued the applicant failed to make full financial disclosure, citing inadequate evidence about her home’s value, superannuation at the time of death, lack of corroboration for her financial assets, insufficient detail on home repair costs, and unexplained expenditure, suggesting hidden income or underestimated savings.
While some financial details only emerged during cross-examination, the Court found that the applicant’s affidavits provided a sufficiently accurate picture of her finances. There was no dishonesty or concealment; a building quote supported her evidence regarding necessary home repairs.
The respondent also contended that the applicant didn’t require provision due to independent wealth—her $2 million home, superannuation of over $450,000, and over $45,000 in savings. The Court did not accept this as grounds to deny a claim.
The applicant’s claim was supported by unchallenged evidence that she was adopted as a baby by Raymond and Sheila Shields and treated as their biological child. She received nothing from their estates. While it was reasonable that Sheila’s Estate went to Raymond, there was an inference that the deceased had inherited everything from Raymond. As Nettle J noted in McKenzie v Topp, once a second spouse (here, Nita) dies, any remaining estate should reasonably account for the children of the deceased’s earlier marriage.
Though Nita had not taken responsibility for the applicant’s well-being during her lifetime, the moral obligation arose from the applicant’s relationship with her adoptive father, the lack of prior provision, the Estate’s size, and the absence of competing claims.
Section 8A of the Act allows consideration of the testatrix’s stated reasons for not providing for the applicant. The Court found that, while the Court must respect testamentary freedom, the deceased’s reasons did not outweigh her moral duty. Whether the deceased considered the applicant a stepchild was irrelevant—legally and morally, the applicant was in the position of a child of the family.
The respondent conceded that nothing about the applicant’s relationship with her father reduced his moral duty. Although there had been a long estrangement, the Court found it was mutual and complex, and that some reconciliation occurred before his death. Estrangement alone did not negate the duty to provide for the applicant.
The Court inferred that most of Nita’s Estate likely came from Raymond. Nita had minimal assets or income, and the respondent provided little evidence about Raymond’s Estate or what Nita brought into the marriage.
The Court acknowledged the value of the applicant’s home but found that its worth did not bar her claim, as selling would require her to move and disrupt her established social ties. Her superannuation, even post-settlement, was modest. At 69, her expectation of a comfortable retirement was reasonable.
The Estate’s size allowed for adequate provision without affecting others with moral claims. The Court noted that three charities were left $150,000, with no evidence of any strong personal connection, and $80,000 to the respondent, who admitted she had not expected anything. These gifts did not outweigh the testatrix’s duty to the applicant.
The Court concluded that the applicant warranted additional provision. Although this did not require equal treatment with her siblings, their gifts helped guide what was appropriate. The Court declined to disturb gifts to her siblings but ordered that $90,000 be provided to the applicant—enough to fund her dental work and some home repairs before drawing on her savings. The Executor should take this amount equally from the charities and the respondent.
Estate Distribution and the Court’s Jurisdiction
One final matter concerns the respondent’s early distribution of the Estate, before the three months for making a family provision claim under s. 11 of the Act had expired. Despite this, the Court still has the power to make a provision from the Estate, as confirmed in Easterbrook v Young(1977) 136 CLR 308. Otherwise, premature distribution could defeat valid claims. As Vaisey J said in Re Simpson (deceased) in 1949, while the Estate can pay debts and expenses, no distributions to beneficiaries should occur if there’s any chance an applicant might claim under the Act.
This principle differs for claims made outside the statutory time limit. The Full Court of the Supreme Court of South Australia in Brooks v Young[2018] SASCFC 81 dealt with this concerning their equivalent legislation, which allowed six months from the grant of probate. In that case, Doyle J (with Kelly and Bampton JJ agreeing) confirmed that if claiming within the permitted timeframe, a court may make orders affecting any part of the Estate, even assets already distributed; supported by the High Court in Easterbrook v Young (1977) 136 CLR 308 further confirmed by Blunden v Blunden & Anor [2008] SASC 286 and Broadhead v Prescott [2015] SASC 3. The legal basis for this is that such an order operates like a codicil to the Will executed before the testator’s death.
Counsel informed the Court that two charities returned the distributions once they were made aware of premature payment. One charity has yet to do so. In such circumstances, the legal basis for requiring repayment is discussed in Brooks v Young [2018] SASCFC 81 at [65]
“In the event of an order in respect of an asset that has been distributed to a beneficiary, that asset will be “held” by the beneficiary subject to the order for provision (s 9(7)). Presumably this means held on trust for the successful claimant. In other words, the successful claimant will have a proprietary right permitting him or her to trace through to the asset (or its traceable proceeds) in the beneficiary’s hands. If the beneficiary no longer holds the asset (or its traceable proceeds), then it would seem that the claimant would have a personal claim against the beneficiary”
though both parties presented arguments about the credibility of the respondent’s explanation for why the Estate was distributed early, the Court did not need to resolve that issue. It retains the authority to make orders over distributed and undistributed parts of the Estate.”
Final Orders
1. The Court orders that:
• The applicant receives an additional $90,000 from the Estate of Nita Eileen Shields.
• This amount is to be paid from the following bequests:
• $24,000 from the gift to the Clifford Craig Medical Research Trust;
• $24,000 from the gift to the Royal Flying Doctor Service;
• $24,000 from the gift to Camp Quality;
• $18,000 from the gift made to the respondent.
2. In line with section 9(2) of the Act, the registry will make a certified copy of this order on the probate of the Will. The respondent is required to provide the probate to the Court Registrar for this purpose.
3. The Court will hear further submissions on consequential orders, including costs. Since the entire net Estate is allocated by the Will and the applicant’s award, the Court must determine the apportionment of costs.
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