A recent Court of Appeal judgment has upheld the decision of Kunc J in allowing a claim for family provision by an adult child against his deceased father’s estate.

Dad was in his 80s when he passed away. He left a fairly standard will, leaving everything to his wife, then if she did not survive him, everything equally divided between his 6 children, including the Plaintiff, an adopted child of the deceased (from mother’s first marriage).

Mum was 90.

Dad died in December 2015. In May 2016, the Plaintiff suffered a heart attack that resulted in permanent damage. A second heart attack occurred in June. The plaintiff was in his 60s, unmarried, but with a dependent daughter. His former de facto spouse remained living with him acting as his carer. There was no argument that his needs had increased due to the heart attacks and surgery.

Mum was still residing in the matrimonial property and did not want to leave the property.

Most of the assets owned by the deceased were owned as joint tenants, so there was little actual Estate. If provision were to be made it would need to come from notional estate, the largest asset being the family home. The only way further provision was going to be provided to the son was if the family home was sold. Notwithstanding that, the Court found that the size of the Estate was such that provision could be made for the Plaintiff.

A successful argument run by the Plaintiff was that due to Mum’s age, she was likely to be leaving the property in the near future anyway, so the Court should favour the Plaintiff in the competing interests to the testator’s bounty, and not resist an making an order that would require the property to be sold.

This case highlights that the time for determining whether adequate provision had been made for the plaintiff is at the time of the hearing. When someone has suffered such significant, life long changes to their health in this way, after the deceased’s death, the essential argument is that had the deceased known of the situation one of his children may be in, he would have made provision for that child. In this instance Kunc J looked at what community standards would expect, even if it meant Mum must sell her home in order to give the Plaintiff the provision ordered.

Kunc J spent some time going through previous decisions of the Court highlighting the principles to be considered in determining claims by adult children; including that there should be no disposition against making provision for such claimants; and that any guidelines to be found in such judgments are not be elevated to inflexible rules.

The Court generally does not find that it would be a reasonable expectation for parents to provide their adult children with an unencumbered property. However there are some cases in which such provision is adequate. In this case it was determined that adequate provision would be an amount sufficient to enable the Plaintiff to purchase land and build a house so he had suitable accommodation for his needs and did not need to fear being evicted.

Mum appealed the decision, however was unsuccessful. The Court of Appeal decision highlighted some of the deficiencies in the evidence led at first instance, resulting in Mum trying to introduce new or updated evidence at the appeal hearing. This included a new valuation for the property that was substantially lower than the one relied on at hearing. As the information was available at the time of hearing, the Court of Appeal found they should have provided the new valuation at that time. Also the fact that the Plaintiff had commenced medical negligence proceedings was evidence that the Estate could have presented at the hearing. Unfortunately trying to raise these as evidence in the Court of Appeal was simply too late.

The Court of Appeal ultimately found that it was open to Kunc J to find that Mum was likely to vacate the property in the near future merely by virtue of her age.

This was an unfortunate situation for the parties to find themselves in. It would certainly appear to be a case that should have settled at mediation, as it has ultimately cost a considerable amount in legal fees and untold emotional costs and likely family disharmony.

Cowap v Cowap [2020] NSWCA 19; Cowap v Cowap [2019] NSWSC 1104