Brown v Brown  NSWSC 1393 – 14 October 2022
Family Provision Claims – Succession Act – Step-child
A family provision claim was heard in the Supreme Court of New South Wales for the estate of John William Brown (John), who passed away in October 2019. Henry J rejected the claim brought by John’s ex-stepson, David Brown (David) against John’s son and executor, Robert Brown (Robert).
In July 2018, John had named his son, Robert, as the executor of his will and the sole beneficiary of his estate, valued at $821,500. John’s stepson from a previous marriage, David, applied to the Court for a provision order against John’s estate for the amount of $240,000. The basis of David’s claim was that he was an eligible person under s 57(1)(c) of the Succession Act 2006 (The Act), which allows for the “child” of the deceased to initiate a family provision claim on the deceased’s estate.
Robert refuted that David was John’s child for the purposes of the claim. Robert instead submitted that David was John’s “ex-stepchild,” who was dependent on John from 1973 to 1981. Being dependent on John throughout this period would allow David to make a family provision claim under s 57(1)(e) of the Act.
However, the Court would still consider the factors found in s 60(2) of the Act when deciding if David was eligible to make the family provision claim. These factors involve the Court articulating the extent of John and David’s relationship, the obligations, and responsibilities they both had to each other and John’s testamentary intentions.
David submitted that, despite being his stepson, he had always viewed John as his father. David provided that from the beginning of their relationship when David was eleven years old, he referred to John as his “dad” and that he had changed his surname to “Brown” to match John’s when he was in high school. John, David, Robert and the rest of their blended family holidayed together, cohabitated for long periods and remained connected with each other throughout the 1970s and 80s. However, during 1990 to 2003, there was limited contact between David and John and from 2004 onwards, David did not attempt to make any contact with John.
Robert, who was named in the will, had maintained a consistent and long-standing relationship with John throughout his entire life. Robert had moved from Wollongong where the family is originally from, to Sydney and called John two or three times a week and went to visit him for dinner every two weeks. Around 2017, John granted Robert to be his power of attorney and guardian, giving Robert the authority to make financial and medical decisions on John’s behalf. Robert helped John move to the Central Coast in July 2018 and still maintained consistent constant and connection with his father. Later in July 2018, John named Robert to be the sole beneficiary of his estate in his will.
Henry J did not accept that David met the definition of being John’s “child” as provided in s 57(2) of the Act. David’s submission was rejected on the basis that the Act does not include a definition of “step-child” and that if it were intended for a step-child of the deceased to be considered an eligible person to make a family provision claim, the Act would provide this in a separate category, as it currently does with adopted children. Henry J provided that the ordinary and natural meaning of the word “child” has not yet evolved to always, and necessarily, include a stepchild, at least for the purposes of interpreting s 57(2) of the Act.
Further, Henry J was unconvinced that David’s case was so unique that he ought to be considered John’s child for the purposes of the Act. It was accepted that John had stepped into a paternal role for David from a young age and that during the early stages of David’s life, they did share a genuine familial relationship. However, the totality of the evidence indicated that David and John’s relationship deteriorated over the course of their lives due to many different factors and the complete lack of contact between them after 2004 indicated that their relationship had “likely dissolved by the time of the deceased’s death.”
In regard to John’s testamentary intentions, Henry J provided the following:
“There is no documentary evidence that the deceased recognised he had a moral duty to provide for David or considered him as a potential claimant and decided to exclude him from his estate. However, his testamentary wishes, as expressed by the terms of his will, are consistent with statements he made regarding his intentions throughout his life and his attitude that Robert was his only son.”
Henry J held that David was to pay Robert’s costs on an ordinary basis.
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