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Call us on Successes & failures: recent family provision claim cases in NSW
By Johanna Woodland
Although the Court encourages settlement, many family provision claim cases still go to final hearing.
Below are a few recent family provision claims cases in NSW which represent common scenarios – estrangement, blended families and step-children.
Family provision claim case study: Blended Families & Poor Decisions
Bradley Bates v Robert Henry Cooke [2014] NSWSC 1259 (15 September 2014)
The late Mrs Cooke and her husband made mutual Wills, leaving their entire estates to one another in the first instance, and then to be divided equally between their five children when both of them had passed. Each of Mr and Mrs Cooke had two children from a previous relationship, and the couple had one child together.
Following Mrs Cooke’s death, a claim was brought by her son from a previous relationship, Bradley, against the Estate. Mrs Cooke’s actual Estate had no value, having held her assets in superannuation or jointly with her husband, they would not normally form part of her Estate. However, in the claim by Bradley, he applied for provision out of her Estate together with an order that Mrs Cooke’s interest in her joint assets and superannuation be treated as part of her ‘notional’ Estate.
Much of Bradley’s claim was based on his allegation that there was no guarantee Mr Cooke would not alter his Will and as such, Bradley’s “share” should either be paid from Mrs Cooke’s notional Estate, or be held on trust for Bradley until Mr Cooke died. It is worth noting that Bradley would not have been an eligible person to make a claim on Mr Cooke’s Estate.
The Court did not accept Bradley’s submissions, and found that applying community standards and expectations, adequate provision had been made. The Court found that much of Bradley’s financial problems had been caused by his own actions and failed investments, and considered that as a competent adult, Bradley should be responsible for his own financial investment decisions, and that the responsibility for provision did not extend to remedying the consequences of his own actions.
Family provision claim case study: Long estrangement
Turch v Tripolone [2020] NSWSC 117
In this case, the deceased Mother died without a Will (intestate), and letters of administration were granted for the estate to be shared equally between her three surviving children.
The deceased was estranged from one of her sons for approximately 19 years and he brought a claim for family provision. The relationship between the plaintiff and the deceased became one of estrangement after the Mother left the family home, with the deceased greatly embittered towards the plaintiff because he took his father’s side, against his Mother, in Family Court proceedings.
The plaintiff alleged that he had been left without adequate provision for his maintenance, education and advancement in life as a result of the equal division of the deceased’s estate. Further, the Plaintiff noted his capacity as the deceased’s brother carer, who suffered from dementia, as a reason why he should receive a greater share of the estate.
The court considered the financial position of the three children, the nature of the relationship of the three children with the deceased, the size of the estate and the deceased’s conscious decision to die without a Will so that her estate would be divided equally. The Court came to the conclusion that the estrangement could not solely be attributed to the Mother, that he had not proved that he had not been provided with proper provision and ruled that the estate should be divided equally between the three children, with the son bearing his own legal costs of bringing the claim and also the costs of the estate in defending the claim.
Family provision claim case study: Step children
Spata v Tumino; Estate of Gina Spata [2017] NSWSC 111 (24 February 2017)
In the case of Spata v Tumino, the Court considered the moral obligations of a step-parent and whether the step child could be considered a dependant of the deceased, and was therefore eligible to make a claim. The deceased, Mrs Spata was pre-deceased by her husband. Mrs Spata had no children, but had three step children through her husband. Mrs Spata had received a portion of her late husband’s Estate on his death, and the balance had gone to his three children.
Mrs Spata left her whole Estate to her niece and nephew, however her step-son, John, brought a claim against her Estate. John had lived with Mrs Spata and her husband with his wife, Valerie, for approximately 6-8 months, and then moved back in with them for a further period of anywhere between 2-5 years, after his marriage broke down.
John claimed he was an eligible person to make a claim, being a person who was a member of Mrs Spata’s household and dependent on her, and that provision should have been made for him.
The Court considered that as an able-bodied adult step child, John had not in fact been dependant on the deceased whilst living with her and his Father. Although the deceased allegedly performed household tasks such as washing for John, it was not alleged that he was dependent on her to do so. Further, the homes which he resided in with the couple, were in fact owned by Ross, and accordingly John was not dependent on the deceased for housing.
The Court decided that John failed to establish that he was wholly or partially dependent on the Mrs Spata at any time.
The Court considered that there was a moral obligation for Mrs Spata to have made provision for her three step-sons, largely due to promises she made to them during her lifetime and the provision made for her out of her late husband’s Estate. However, as he was not an eligible person, the Court dismissed John’s case and he did not receive anything from Mrs Spata’s Estate.
Expert legal advice for your family provision claim
It is therefore crucial that in the event another party makes claim against an estate of a loved one; you immediately seek the competent legal advice of the experienced Wills and Estate Planning team at O’Hearn Lawyers. If you’d like to protect your Will from challenges or if you are interested in contesting a Will, please get in touch with our trusted Wills and Estate Planning team on 4951 8199 or click below to contact us today.
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