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Family Provision claim – Adult step child

Estate Whiteway [2019] NSWSC 266
Supreme Court of New South Wales
Lindsay J
Wills and estates.The plaintiff was the child of the deceased’s first marriage.  The deceased’s estate was principally distributed to plaintiff’s stepmother (who was the deceased’s widow).  The deceased’s widow ’died without issue’.  The plaintiff sought family provision ’vis a vis’ deceased’s widow.  The court considered whether to grant an extension of time to make the application and whether plaintiff was “eligible person”.  The Court considered both the Family Provision Act 1982 (NSW) and Succession Act 2006 (NSW) – held: plaintiff entitled to ’modest provision’ from deceased’s notional estate – family provision order granted.


The Court ordered that;

  1. Accordingly, reserving to the parties an opportunity to make submissions about the form of orders (including costs orders) to be made in disposition of the proceedings, I propose to make orders to the following effect:
  1. ORDER that the time within which the plaintiff may make an application for a family provision order against the estate, or notional estate, of the deceased be extended up to and including the date of commencement of these proceedings.
  2. ORDER that $740,000 of the estate of Stephne be designated as notional estate of the deceased so far as may be necessary to satisfy the order for provision made in favour of the plaintiff, and any costs orders made, in these proceedings.
  3. ORDER that provision be made for the plaintiff out of the notional estate of the deceased by way of a legacy in the sum of $250,000 (payable in addition to the legacy of $100,000 for which Stephne’s will provides in favour of the plaintiff).
  4. ORDER that no interest be payable on the legacy payable out of notional estate if the legacy be paid within 28 days of the making of these orders; but that, at the expiration of that period of time the legacy accrue interest at the rate for which section 84A of the Probate and Administration Act 1898 NSW provides.
  5. ORDER that the burden of the provision made for the plaintiff, and any orders for costs, out of the notional estate of the deceased be borne rateably by the beneficiaries (other than the plaintiff) named in the Will of Stephne.
  6. ORDER that the costs of the plaintiff assessed on the ordinary basis, be paid out of the notional estate of the deceased.
  7. ORDER that the costs of the defendant, assessed on the indemnity basis, be paid out of the notional estate of the deceased.
  8. ORDER that the statement of claim otherwise be dismissed.
  1. There may be a need to consider more specifically what orders for costs should be made. Regrettably, the parties’ estimates of costs are substantial. The plaintiff’s estimate is in the order of $230,000, the defendant’s in the order of $139,000. The plaintiff has succeeded in obtaining relief, but nowhere near the measure for which she contended, and limited in kind to a grant of family provision relief.