A recent family provision claim made on behalf of a minor child was unsuccessful. The child was the result of a brief relationship, and it appears that the decision to maintain the pregnancy caused the relationship to breakdown irretrievably.

The deceased was a member of the Defence Force and had been posted overseas. As the deceased did not want the pregnancy to continue, he refused to meet the Plaintiff child or to have anything to do with him. He recognised his paternity and paid child support, but otherwise had no contact with him. He had not even told his parents about the child. Aside from a small legacy in lieu of child support made in his will, the rest of his estate went to his parents.

The deceased died at the age of 39 years.

The parents attempted to argue that mere paternity was not sufficient to require the deceased to make adequate provision for the child, the Court found that was not a valid argument. As a child of the deceased he was an eligible person notwithstanding the lack of a relationship with the deceased prior to death.

However Hallen J did take into consideration other assets that were going to the minor child as a result of the deceased’s death, including assets that formed notional estate – namely life insurance proceeds and superannuation. As these assets were going to the minor child, the Court considered that there was adequate provision for the minor child and no need to interfere with the testamentary intentions of the deceased.

It should be noted that this case was a little unusual as the minor’s claim was brought by a tutor, who did not attend the hearing. The matter was taken on contingency by both the solicitors and senior counsel. The Court questioned the need to engage senior counsel (albeit on a contingency basis).

Harris v Carter [2020] NSWSC 196