11.

After a relatively short period of cohabitation between Austin and Bridget came to an end in
much bitterness, Bridget married Chad. Bridget gave birth to a son Dean soon after. Austin was
unaware of the birth of Dean.

Emma, who was separated from her husband, later moved in with Austin. Emma’s daughter,
Fay, remained with her father who was awarded custody. Fay however spent holidays with
Emma and Austin. Austin regarded Fay as his daughter and showered her with presents. Fay
would refer to Austin as “Dad” whenever she visited.

Austin and Emma separated when Emma fell gravely ill. Emma however permitted Fay to
maintain contact with Austin as Fay was fond of him. Austin continued to shower Fay with
presents and would refer to her as “Daddy’s little princess”. Emma died three years ago leaving
60% of her estate to Austin and the remainder to Fay.

Whilst Emma was hospitalized, Austin discovered that her nurse Steve was Bridget’s son.
Bridget had never mentioned him to Austin. Steve went to live with Austin who offered him a
place to stay. Austin would boast to his friends about Steve, referring to him as his big son.
Austin also paid Steve’s tuition fees at the University as Steve was heavily in debt.

Austin married Geeta shortly after Emma’s death and the following year Geeta gave birth to
twins Hank and Ian. Hank was diagnosed as suffering from a mental abnormality due to a birth
defect and requires special attention. Both Hank and Ian were put up for adoption by Geeta and
Austin. Austin died in March last year leaving his entire estate to Geeta. Ian was adopted last
November.

Advise as to Steve 28, Dean 18, Fay 15, Hank and Ian’s claim for financial provision from
Austin’s estate.

Hank

1) Whether Hank would be entitled to maintenance from Austin’s estate considering he was
put up for adoption and in light of his disability.
 Establish that Hank falls within a category of applicant – parentage
(adoption)ward of state, treated as a child of the deceased
 Failure to provide for him was unreasonable, considering his size, nature
(Emma), Hank’s disability

Yes, because he needs special attention and since he is incapable of providing for himself he
would be granted some amount of money/assistance from the estate to ensure he is adequately
taken care of.

No, because he was given up for adoption therefore he would no longer be considered their child
at the time of Austin’s death.
Testators are free to dispose of property as they please but where they fail to provide for certain
categories of people or where the intestacy rules fail to provide for certain categories of people, a
claim can be made under the Family and Dependents Provision Act. S 3 of the FDPA lists the
category of persons who may have a claim under these provisions and it includes: wife or
husband of the deceased, child of the deceased, any person who is not the child of the deceased
but who was treated as a child of the family in relation to a marriage to which the deceased was a
party and any other person, not already listed, who immediately prior to the death of the
deceased was being maintained, either wholly or partly by the deceased where that maintenance
was not in return of full valuable consideration.

There are certain pre-conditions that must be met before a claim can be made. The first is that the
deceased must have died after the commencement of this act, after 1990. The second
precondition is that the deceased must have been domiciled in Guyana at the time of death (s 3)
and finally the application must be brought no later than one year from the date on which
representation is taken out unless the court grants leave to do otherwise (s6).

The case of Re Coventry has set out the two pronged approach to dealing with these applications.
The first stage is to establish whether the applicant has ground for making the claim and the
court does this by determining whether the provisions governing the disposal of the deceased’s
estate, whether it was a will or the rules of intestacy, failed to make reasonable provision for the
applicant. If this is determined in the affirmative, the court would advance to the second stage
which is to determine whether the court may exercise its discretion to exercise its powers to
make an order for further provision for the applicant.

In determining the foregoing, section 5 of the Act lists various guidelines that would guide the
court’s exercise of discretion. There are general guidelines that would apply to all classes of
applicants. These include the means of the applicant, any other applicant or the beneficiary,
obligations or responsibilities owed to this applicant, any other applicant or the beneficiary, size
and nature of the estate, any physical or mental disability of the applicant, any other applicant or
the beneficiary and how their means and needs are affected and any other matter including
conduct of any party, including the deceased, the applicant, any other applicant or the
beneficiaries. These guidelines are merely considerations, they are not conclusive. There are
further guidelines for each specific category of claimants.

Assuming Austin died after the commencement of this Act and domiciled in Guyana, the
prospect of applications of the following persons would be considered.

>> Whether Hank would be entitled to maintenance from Austin’s estate considering he was put
up for adoption and in light of his disability.
Hank would be able to claim under s 3(1) (b) as a child of the deceased. A person born as a
‘child of the deceased’ loses his right to claim under the Act if he is adopted before making an
application for provision. This principle was illustrated in Re Collins where the claim of a son of
the deceased who was adopted failed as the relationship between the mother and son terminated
on the execution of the adoption order. However, in Hank’s case, no adoption order was made,
therefore the parental rights and responsibilities remain.

However, falling within one of the listed categories of applicant only gives a person the right to
apply to court for financial provision (i.e. locus standi). There is no automatic guarantee of
success as it is still at the court’s discretion. The court would go through the stages listed in Re
Coventry to first determine whether the failure to make provision for Hank was reasonable.

Factors to be considered in this case are means of the applicant, other applicants and the
beneficiary, obligations and responsibilities owed by Austin to Hank, size of the estate, Hank’s
disability and how this affects his needs and means.

In this case no provision was made for Hank but provision was made for his mother. In
determining whether this was reasonable, the court would consider Hank’s diagnosed birth
defect and the fact that his earning prospects would be significantly reduced and the fact that he
would need full time care. Similar considerations were made in the case of Re Debenham where
the court considered the medical condition of the applicant, the daughter of deceased, in making
an order for financial provision. The applicant in that case was epileptic, in poor health and
unable to fend for herself. Consequently, the court would also consider Hank’s means. Geeta
being Hanks mother, until his adoption is finalized, has a duty to maintain him now that Austin is
deceased and she is the sole beneficiary of the will. However, if that estate is small in value, the
court would also consider Geeta’s earning capacity considering Hank requires special care. The
court would also consider any obligation or responsibility Austin had towards Hank as in the
case of Re Callaghen. In this case, the court considered that the deceased had an obligation to the
applicant and they made an order in favour of the applicant. Until the adoption, Austin would
have been responsible for Hank’s maintenance so it appears unreasonable that he would be
excluded from provisions.

Should the court find that the failure to provide was unreasonable considering that his mother is
the sole beneficiary and she has a duty to maintain Hank until he is adopted, the court would then
have to determine whether to exercise their discretion to order provision. Should the court decide
to make provision for Hank from the estate, this may be in the form of periodic payments until
his adoption is finalized and the adoptive parents assume responsibility for his maintenance.