Wills Amendment Act
The Wills Act 1970 was amended by the Wills Amendment Act 2007. The amendments came into effect on 9 February 2008.
One major change in the Act was the insertion of section 14A which states that a Will shall be revoked upon the ending of a Testator’s marriage unless, pursuant to subsection 2 of that section, a contrary intention appears in the Will or there is other evidence establishing that intention.
A marriage is taken to have ended, according to section 14A(3):
(a) when a divorce order terminating the marriage takes effect under the Family Law Act;
(b) on the granting of a decree of nullity in respect of the marriage by the Family Court of Australia or the Family Court of Western Australia; or
(c) on the dissolution or annulment of the marriage in accordance with the law of a place outside Australia, but only if that dissolution or annulment is recognised in Australia under the Family Law Act.
It is not only divorce that revokes a Will, but “the ending of a marriage”. Section 14A(2) will only revoke a Will where the relevant marriage ended on or after 9 February 2008 so the Will of anyone whose marriage ended, as defined in section 14A(3) before that date will remain unrevoked.
Another major change in the Wills Amendment Act is the introduction of section 24, which allows the Supreme Court to authorise the making, alteration and revocation of Wills for persons who lack testamentary capacity as long as that person is living and is over the age of eighteen years.
The Applicant applying to the Supreme Court must produce the information listed in section 41 of the Wills Act, which includes a written statement of the nature of the application and the reasons for it (s 40(a)), an estimate of the nature and value of the assets and liabilities of the person concerned (s 40(b), any evidence available to the applicant as to the wishes of the person concerned (s 40(d)) and evidence as to the likelihood of the person concerned having testamentary capacity at a later time (s 40(e)).
The Court is able to refuse an application if it is not satisfied of the factors in section 42(1) of the Wills Act (including that the person concerned is incapable of making a valid Will or revoking that person’s Will). The discretion of the Court remains broad under section 42(2) which states that the Court may refuse an application for any reason not listed in section 42(1).
Contact the family lawyers at Culshaw Miller in Perth or Adelaide today for more information.
Perth: (08) 9488 1300 or email
Adelaide: (08) 8464 0033 or email
Adult Child Maintenance – The Basics
Blog post by Daniel Sampson
When can Adult Children apply for Maintenance?
Financial Support for parents or others with the care of children is generally dealt with by the provision of the Child Support Assessment Act and the administration of that legislation by the Department of Human Services – Child Support. But what happens when children turning 18 or already adult children require further support? Under what circumstances can ‘adult children’ seek maintenance from their parents?
The Concept of Maintenance in Family Law
Where there is a need of a child, and that need is justified and reasonable, a parent (or parents) with the capacity to support the child, should attend to those needs as much as can be determined to be reasonable. Maintenance does not mean subsistence, but enough support to allow the child to have their reasonable needs met. There are many factors but ultimately the determination of a reasonable amount of maintenance will be a balancing act between the capacity of the parent or parents to pay and the child’s reasonable needs in the circumstances.
The Health and Education
Under section 66L of the Family Law Act, the Family courts may make orders for maintenance of children over 18 years:
- To enable a child to complete their education; or
- Because of a physical or mental disability.
Such orders can be applied for after the child is 17 years old in anticipation of his or her upcoming 18th birthday.
Who can apply?
Under the act, a child, a parent, grandparent or any other person concerned with the care, welfare or development of the child may apply for maintenance for the child from a parent.
Is there an Age Limit?
Per se, there is no limit to the age of the ‘adult child’. A parent under the provisions of the Family Law Act may have a responsibility to their disabled child even if that disability occurs after age 18. There is likely to be a common sense approach to the concept of ‘completing’ a child’s education at the secondary or tertiary level.
Common Applications
It is usual for a child embarking on tertiary education to make an application seeking support from a financially well-off parent. It may also be that they require additional assistance with respect to their particular field. The court will balance the need of the child with the capacity of the parents.
In terms of physical or mental disability, it is common for the carers of children transitioning from the Child Support System to seek further maintenance.
Case Examples
In the matter of Re: AM (Adult Child Maintenance) (2006), an adult child sought maintenance from a parent after he was diagnosed with a degenerative disease that stopped him being able to work. He was 28. The court found that he was entitled to periodic payments from his father.
In the matter of A and A (1981), a 16-year-old child applied for maintenance from his parents while in the care of his uncle. The maintenance was for the child’s participation in an overseas sporting event that he was deemed to show some talent in. In a contemporary setting his uncle may have been able to deal with these issues through the Department of Human Services – Child Support.
For more information on adult child maintenance, please contact Daniel Sampson from Culshaw Miller Lawyers.