We rarely see cases of this nature proceed through to judgment after trial.  This case provides estate lawyers with a precedent of a successful family provision application in a small estate. 

The deceased, Leslie Ah Shay, died in December of 2011 leaving a modest estate worth approximately $260,000 (comprising a house, and two motor vehicles of nominal value).   His step-child, Peter, brought a claim for further provision out of the estate.  The deceased was survived by 3 step-children and Robert, his only biological child.  Robert was the respondent in the matter and the executor of the estate.   

The deceased left a will gifting his motor vehicles and a cash legacy of $15,000 to Peter with the residuary estate passing to Robert.  No provision was made for the other two step-children. Peter argued that this did not provide adequate provision.  The application was defended by Robert.

His Honour Judge Harrison followed the two stage process established in Singer v Berghouse (1994) 181 CLR 2012 and upheld in Vigolo v Bostin [2005] 221 CLR 191 in deciding the application.  It must first be established that the provision (if any) made for the applicant is inadequate for proper maintenance, education and advancement in life.  If this is established, the second stage requires that the court find that it is appropriate in all the circumstances to exercise its discretion in providing for further provision.   

Both Peter and Robert were considered to be financially stable and both had unremarkable father-son relationships with the deceased.  However, his Honour expressed disappointment about material Robert put before the court, commenting that parts of his affidavit material were misleading and not an accurate reflection of his circumstances. He was also criticised for his lack of effort to sell the deceased’s home, which was clear from the wording of the will, would likely have to be sold to provide for the applicant’s legacy.

In cases such as this, the court has historically been critical of solicitors who facilitate such applications where the majority of an already small estate is consumed by legal fees.  Additionally, even where it can be shown that a family provision application is appropriate in all the circumstances, the application fails at the second discretionary stage as there is simply not enough in the estate to provide for any further provision.

A distinction is often made in modest estates between a widow who makes a claim for further provision and that of an adult child.  An adult child is considered, with the exception of special need or claim to justify court intervention, able to maintain and support himself or herself.   

Despite the fact that Peter was a capable adult son, his Honour held that this case was one of the special “moral”, “natural” or “legitimate” claims (referred to by Gleeson CJ in Vigolo) whereby a just and wise step-father in the deceased’s position, ought to have made proper provision for the maintenance and support of the applicant.  The applicant’s contribution to the preservation, maintenance and upkeep of the sole asset of the estate and his substantial level of debt for someone approaching retirement were the main persuading factors in proving the first stage of the test. 

Surprisingly, even with reference to the second stage and the very modest estate, his Honour held that he should exercise his discretion to make an additional allowance for the applicant despite the size of the estate.    The applicant was awarded an additional $30,000 from the estate of the deceased in addition to his gift of $15,000 under the will.