Chan v Chan

[2016] NSWCA 222

NSW Court of Appeal

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Interrogate

Catchwords

1. Succession
2. › Family provision
3. › Claim by adult child
4. › Applicant with functional impairment
5. › History of financial dependence on testator
6. › Whether testator made adequate provision
7. › Adequacy assessed in context of pre-existing condition and station in life
8. › Relevant factors including size of estate, proportion conferred on respondent, respondent's financial need
9. › Succession Act 2006 (NSW), ss 59(1), 60(2)
1. Succession
2. › Family provision
3. › Adequate provision for proper maintenance
4. › Whether provision of accommodation without means to maintain it constitutes adequate provision
5. › Whether property bequeathed may be treated as functional equivalent of sale proceeds
6. › Succession Act 2006 (NSW), s 59(1)
1. Practice and Procedure
2. › Cross-appeal
3. › Extension of time to bring family provision proceedings
4. › Whether extension of time within discretionary judgment of trial judge
5. › Whether discretion reviewable on appeal
6. › Succession Act 2006 (NSW), s 58(2)

Quick Take

Where a testator has provided accommodation to a functionally impaired child during their lifetime, a bequest of that property without sufficient funds for its maintenance and repair may constitute inadequate provision under s 59(1) of the Succession Act 2006 (NSW). The adequacy of provision must be assessed by reference to the applicant's pre-existing conditions and station in life, not by an objective calculation of financial needs based on the assumption that the property could be sold. The size of the estate and the competing claims of other beneficiaries are relevant factors that must not be divorced from the assessment of adequacy.