Zitman v Zitman

Peggy Zitman, one of five surviving children of the late Willem Zitman, sought an order under s 6 of the Family Provision Act 1972 (WA) that adequate provision be made for her proper maintenance, support, education and advancement in life out of her father's estate. Willem left a will which provided that the residue of his estate be held on trust for his wife Louella, and if she predeceased him, on trust for his sons Xavier, Roury, and Storm as tenants in common. Peggy sought an order for the entirety of the residue of the estate to be converted into cash and paid to her so that she can buy an apartment. The court found that the pecuniary legacy of $100,000 left to Peggy did not constitute adequate provision for her proper maintenance, support, education or advancement in life. The court considered that Peggy had a moral claim on the estate, but the complete breakdown in the relationship between her and her father significantly reduced her claim. The court decided that adequate provision for Peggy's proper maintenance, support, education or advancement in life required that the provision made for her out of the estate be increased by $100,000.

The court's decision was based on a two-stage test. The first stage required the court to determine whether the disposition of the deceased's estate was not such as to make adequate provision for the proper maintenance, support, education and advancement in life of the claimant. The court found that the $100,000 legacy to Peggy did not constitute adequate provision for her proper maintenance, support, education or advancement in life. The second stage involved the exercise of discretion, taking into account the relevant facts as they existed at the time of making the order. The court considered the relevant facts, including Peggy's financial position, the strength of her moral claim on the estate, and the value of the estate. The court decided that adequate provision for Peggy's proper maintenance, support, education or advancement in life required that the provision made for her out of the estate be increased by $100,000.