The Supreme Court of New South Wales has dismissed a family provision claim brought by a 76 year old plaintiff against his late father’s estate, with Justice Hammerschlag making provisional orders for the plaintiff to pay the defendant’s legal costs.
Background
The deceased, aged 98 at his death, left an estate valued at approximately $1.3 million, comprised almost entirely of the family home at Revesby. Under his Will, the entire estate passed to the defendant, one of the deceased’s five children, who had lived at the property his whole life and had singlehandedly cared for both parents in their later years. The deceased accompanied his Will with a written statement setting out his reasons for this distribution, noting that his other children, including the plaintiff, had established themselves in life and were in comfortable financial circumstances.
The plaintiff, an eligible person under the Succession Act 2006 (NSW), sought provision of $90,000, comprising claims for rental assistance, medical treatment and contingencies.
Findings
The Court found the plaintiff’s account of a close relationship with his father unpersuasive, noting inconsistencies in his evidence and a lack of contribution to his father’s welfare over many years, including extended periods spent living overseas. His claims of financial hardship were similarly not accepted: the Court noted, among other matters, that he retained a motor vehicle overseas and had undertaken multiple international trips inconsistent with his asserted circumstances.
Each component of the claim was found to lack a proper evidentiary foundation. The Court characterised the rental and medical claims in particular as figures “plucked out of the air,” observing that the approach taken bordered on unethical. The Court was also not prepared to require the defendant, who has his own significant health difficulties, to fund any provision by way of a reverse mortgage, which would have materially eroded his equity in the property and undermined the testator’s clear intentions.
Costs
The judgment includes pointed observations on costs. The plaintiff’s estimated party-party costs, incurred on a no win no fee basis, were nearly double the amount claimed, while his solicitor-client costs exceeded that sum further still. The Court noted this as symptomatic of a recurring pattern in family provision litigation: claims are pursued at little financial risk to the claimant, who cannot pay if unsuccessful, while the resisting party bears the full cost of defending the estate.
Practical takeaway
The decision is a reminder of the evidentiary weight a clear, contemporaneous statement of testamentary intention can carry in resisting a family provision claim and of the Court’s continued scrutiny of claims that appear to be brought simply because an estate exists to be claimed against.
You can read the full case here.