When Can A Will be Contested?

• If you receive $1.5 million as the child of a deceased in an estate worth $10 million where the bulk of the estate goes to the spouse have you received adequate provision?
• In the event that you do not receive anything under a will does that automatically mean that you have not received adequate provision?
• Does adequate provision mean that you have to receive something beyond food and housing?
• It is the standard of living that you enjoyed during the lifetime of the deceased important in determining what is and what is not adequate and proper?

Since I am in agreement with the conclusion reached by Waddell J. that the appellant was left without adequate provision for her proper maintenance, it is unnecessary for me to decide whether an appeal from a conclusion of that kind should be governed by the principles that regulate appeals from decisions made in the exercise of a discretion. That question was recently discussed in White v. Barron [20] but in that case also it was unnecessary to decide it. Under s. 3 of the Act, the power of the court to make an order depends upon proof that the testator has died leaving a will that does not make adequate provision for the proper maintenance, education or advancement in life of the applicant; if that is proved, the court may, at its discretion, order that such provision for such maintenance, education and advancement as the court thinks fit shall be made out of the estate for such applicant: see McCosker v. McCosker [21] . It is commonly said that the fact that the applicant has been left without such adequate provision is a condition of jurisdiction, but to express the matter in that way shows "more respect for the language of Chancery tradition than of juristic theory": per Dixon C.J. in Blore v. Lang [22] ; the condition is, strictly speaking, a condition of the power. The decision of the question whether this condition has been fulfilled "involves the application to the facts of a legal criterion", to use the words of Aickin J. in White v. Barron [23] , but the nature of the criterion is such that in its application the court, in my respectful opinion, is called upon to exercise a discretionary judgment. As Dixon C.J. pointed out in Pontifical Society for the Propagation of the Faith v. Scales [24] , the words "adequate" and "proper" are always relative. There are no fixed standards, and the court is left to form opinions upon the basis of its own general knowledge and experience of current social conditions and standards: see In re Hodgson, deceased [25] , per Sholl J. For those reasons I share the view expressed by Mason J. in White v. Barron [26] that the twin tasks which face the primary judge are similar, and that it would be artificial to say that the exercise of discretion begins only when the judge has completed the first of his tasks and decided that the appellant was left without adequate provision for proper maintenance - Goodman v Windeyer [1980] HCA 31