SUCCESSION — Succession Act 2006 (NSW), Ch 3, ss 59-60, 100 — family provision — claim by 76 year old adult child for provision of $90,000 from his deceased father’s estate — Plaintiff’s party-party costs are approximately double the claim — the deceased left his house to another child (the Defendant) who had singlehandedly cared for him and who has lived there all his life — the will is accompanied by a written statement by the deceased explaining why he did so, being that the Defendant is on a disability pension and has otherwise devoted himself to looking after his parents and has not had the opportunity to acquire assets of any substance and where the deceased feels that his other children (including the Plaintiff) have established themselves in life and to varying degrees are in a reasonably comfortable financial position — where the Plaintiff claims that he is penurious and homeless and is presently sleeping on a mattress at his first ex-wife’s house — he has spent a significant amount of time living in Thailand, where he uses only cash — where he made no contribution to his father’s welfare or the estate — he seeks provision to enable him to pay rent for a residence in Victoria for the rest of his life but where the provision amounts only to two years of rent and the Court is not satisfied that he genuinely intends to live permanently either in Australia or in Victoria — he claims medical expenses for private healthcare but does not establish that he cannot obtain it in the public system and is unable to assist the Court in quantifying this claim — he claims provision for a motor car and he already has one in Thailand — HELD — claim dismissed — claim for rental is a contrivance — claim for private medical care is made where there is no suggestion that public medical care is not available — contingency claim not justified — Court not satisfied either that inadequate provision has been made for the Plaintiff or that the provision he seeks (or for that matter, any other provision) should be made
Quick Take
1The power to make family provision orders under the Succession Act 2006 (NSW) must be exercised on a principled basis in accordance with the two-stage test in Singer v Berghouse (No 2): the court must be satisfied both that inadequate provision has been made and that provision should be made; it is contrary to principle to order provision simply because an estate can afford it or because its effects will not be felt much by the adversely affected beneficiary.
2A family provision claim predicated on rental assistance must bear a discernible relationship to the articulated basis for the claim; where the court is not satisfied the claimant genuinely intends to live in the nominated location, and the quantum is reverse-engineered from a pre-selected figure rather than calculated from actual need, the claim may be characterised as a contrivance and dismissed.
3Where the sole estate asset is a residence left to a beneficiary who was the deceased's sole carer and has lived there all his life, the court will not order provision requiring that beneficiary to enter a reverse mortgage — particularly where the testator left a detailed written statement explaining the testamentary disposition and the claimant made no contribution to the deceased's welfare or the estate.
