Written by Despina Bouletos

On 26 November 2024, the Supreme Court recently handed down its decision of Chester v Cowin [2024] NSWSC 1554. This case concerned the estate of the late Malcolm Chester, who died intestate on 25 May 2022. Malcolm left two daughters, Geraldine and Penelope, who were each entitled to 50% of his estate pursuant to the rules of intestacy. Malcom’s estate consisted primarily of a property at Reindeer Place, Werrington (valued at $760,000) and cash at bank (valued at $109,055).

Factual Matrix

Geraldine had, for the majority of her lifetime, resided at the Reindeer Place property with Malcolm. Geraldine had four children, Matthew, Mitchell, CW and TW (CW and TW being minors) who also resided at the property with Geraldine.

Geraldine and each of her children commenced proceedings seeking further provision from Malcolm’s estate. The provision sought by each of the plaintiffs was, in effect, that Geraldine and her children have the right to reside in the Reindeer Place property until the youngest child attained adulthood.

Both Penelope and Geraldine had a close and loving relationship with Malcolm, and there was no evidence to the contrary.

Importantly, although Malcolm died intestate, he left a handwritten document dated March 2020 indicating his intention that Geraldine and her children be allowed to remain living in the property, until her youngest child attained adulthood.

Geraldine and her two adult children provided limited and incomplete evidence of their financial circumstances. In respect of Geraldine’s two minor children, no evidence whatsoever was provided as to their financial or social needs, including where they attended school, their extra-curricular activities and the quantum of any financial support received from their father.

Findings by the Court

The Court held that each of Geraldine and her four children were eligible persons to bring a family provision application. Further, the Court held that there were factors warranting the making of such an application by each of Geraldine’s children, such factors being the close relationship of dependency each child had with Malcolm for the whole of their lives, with Malcolm supplying their housing and taking responsibility for a considerable portion of their upbringing.

The Court then considered what bearing the incomplete financial disclosure by each of the plaintiffs had on their applications. The Court referred to the case of Sgro v Thomson [2017] NSWCA 326 in which it was held that, financial need is one indicator as to whether adequate provision has been made, but not the sole or predominant consideration.

The Court held that, if it had been required to be satisfied that the plaintiffs had not been left adequate provision in terms of financial need, it likely would have dismissed the plaintiffs’ summons, as the evidence did not demonstrate their financial need in any meaningful way and was “manifestly deficient”.

However, it was necessary to consider financial need as only one of the factors set out in s 60 of the Succession Act 2006 (NSW). The Court found that several other factors enumerated in s 60 were relevant, including:

· Each of the plaintiffs were dependent on the deceased for a long period;

· The nature of Malcolm’s estate was such that he was able to make provision for both his daughters and grandchildren;

· Malcolm’s testamentary intentions (set out in his note); and

· Gerladine’s minor children had lived their entire lives at the Reindeer Place property. Accordingly, any provision which did not provide them the opportunity to continue residing in that property until attaining adulthood would be inadequate.

Ultimately, the Court made a finding that Geraldine and her two minor children had not been left adequate provision, because, under an intestacy position, they could not continue living in the Reindeer Place property.

The Court made an order for further provision by granting each of them the right to occupy the house until each of the minor children attained adulthood. However, the Court made an order that Geraldine was to pay a fee equal to one third of the market rental for the property for the duration of that time. The Court made no order in relation to the claims by Geraldine’s adult children.

Implications

This case has important implications for family provision applicants and serves as a timely reminder of the need to provide detailed evidence of financial need in order to avoid inviting criticism from the Court. However, this case makes clear that it is possible for a finding of provision to be made, notwithstanding a lack of meaningful evidence regarding financial need by an applicant.

The contents of this post are for informational purposes only. They do not constitute legal advice, are not intended to be a substitute for legal advice and should not be relied upon as such. If you require legal advice or representation for your succession matter, please contact our experienced succession law team.