Lindsay J recently made an order for further provision for an adult child who claimed against the Estate of her late father, despite the fact that he had died some 14 years previously.
The daughter made the claim within 12 months of the date of death of her step-mother. As there are no rights against a step-parent’s estate, she was unable to claim against the estate of her step-mother.
In a nutshell, the plaintiff successfully argued that part of the step-mothers’ estate was notional estate (being the inheritance from the plaintiff’s father) and was available for distribution if the plaintiff was successful.
The plaintiff needed to make an application out of time, and pending that application being granted, Lindsay J found she would be successful in her claim for further provision.
Relevant factors in the plaintiff being successful were the fact that her father’s widow left no issue, nor did she have any one who would have a claim on her estate under the Succession Act. The widow had also made statements over the years since the deceased’s death that certain aspects of the property and personal effects belonged to the girls. She had also made a large number of wills between the deceased’s death and her own 14 years later, and each will had gradually reduced the amount she was giving her step-children.
The plaintiff’s father had written a statement at the time he wrote his final will, explaining why he was not leaving more to his children. At the time he considered his daughters both to be in good health and comfortable financially. Both were gainfully employed at the time. However the plaintiff’s relationship fell apart, her health had declined and she was unable to work full time by the time she made her application. Lindsay J found that the change in circumstances between the time the will was written and the time of the application were so different to warrant granting further provision to the daughter. The other reason for preparing his will in the way he did, was to benefit his wife. With her death, that concern was no longer relevant, and the statement of wishes actually assisted the daughter in her claim because her circumstances were so different than when her father prepared his will.
Lindsay J was not overly concerned with the lengthy delay in commencing proceedings, as he recognised part of the delay was due to respect for the step-mother.
Lindsay J went into some detail about the policy of the notional estate provisions of the Family Provision Act (being the legislation in force at the time of the father’s death). In part, the fact that the step-mother had consistently (albeit lessening) believed she had a moral obligation to make some provision for her step-children, was a relevant factor in making a designating order.
To quote Lindsay J [186]:
“...the deceased had a close and loving relationship with the plaintiff as his daughter. In disposition of his estate he subordinated the interests of the plaintiff to those of [his wife] for the purpose of granting security to his young bride, expecting her to survive him for a substantial period. The purpose served by that testamentary scheme was exhausted upon the death of [his wife]. For her part [his wife] appears at all times to have been conscious of a ”moral’ obligation to make testamentary provision for the plaintiff, in deference to the favour shown to her by the deceased vis a vis his daughters and in acknowledgement of her shared connection with them…”
These were key factors in the plaintiff being successful.
Estate Whiteway [2019] NSWSC 266