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Family Provision claim on appeal

Supreme Court of NSW Court of Appeal
Family Provision Claim Appeal
Olsen v Olsen & Ors [2019] NSWCA 278

This case saw the claim of an adult son refused. The son appealed to the Court of a Appeal and the appeal dismissed by the Court. The deceased and the appellant’s mother had separated and the deceased subsequently remarried and had three children with his second wife. In his will, the deceased left the entire estate worth $379,816.97 to his widow.

From the judgement – “The appellant challenged a decision of a judge of the Equity Division dismissing his summons seeking an order for family provision under s 59 of the Succession Act 2006 (NSW) out of the estate of his late father (“the deceased”).

When the appellant was about nine months old the deceased separated from his wife, the appellant’s mother, and then subsequently remarried and had three children with his second wife. By his will the deceased made no provision for the appellant, leaving to his widow the whole of his estate worth $379,816.97. Other property of which the deceased had been a joint owner was capable of being designated as notional estate.

At a pre-trial directions hearing, the primary judge indicated that he held preliminary concerns relating to the volume and breadth of the appellant’s evidence and expressed critical sentiments regarding the appellant’s case – it being a claim for family provision by an adult son. The primary judge also expressed a view that there would be no question that the position of the three children of the deceased and his second wife would be relevant to the appellant’s claim, a position to which he adhered at trial.

The primary judge dismissed the summons at the conclusion of the hearing. In his reasons, the primary judge repeated the sentiments expressed at the pre-trial hearing, namely that “absent special circumstances, there is no legal or legal or moral justification for an able-bodied adult son clinging to a sense of entitlement that he will necessarily benefit from his parent’s estate”.

The principal arguments raised on appeal were that the primary judge’s decision was:

  1. affected by actual or apprehended bias in that he (i) was unable to be swayed from the fixed opinion alleged, namely that an able-bodied adult son should not be entitled to a family provision order against the estate of one of his parents, (ii) adhered to the view that the position of the deceased’s other children would be relevant to the appellant’s claim, and (iii) was unduly critical of the appellant’s legal representatives; and
  2. in any event affected by error in that the primary judge applied a principle of giving paramountcy to the freedom of testamentary disposition in determining whether an order of provision should be made.”

 

 

Read the judgment here: https://bit.ly/32XzRq9