Two new cases on Family Provision claims have been added to the By Lawyers Reference manual 101 Succession Answers (NSW).
Affidavits and Disclosure
In Megerditchian v Khatchadourian [2019] NSWSC 1870 the court considered a number of important procedural issues, including the requirement that the plaintiff file an affidavit at the time of filing their summons and the issues relating to the form and evidentiary status of that affidavit. At [159] the court stated:
… the purpose of the affidavit prescribed by the Practice Note is to identify, in broad terms, the plaintiff’s evidence concerning the factors enumerated in s 60(2) which may bear on the application. It will not necessarily be exhaustive, or all in admissible form, and it may be supplemented by further evidence as the case moves towards hearing.
The court also considered the plaintiff’s duty of disclosure. At [145] the court noted that:
It is well established that, in some circumstances, where a plaintiff in a family provision application fails to make full and proper disclosure of his or her financial position, the Court will refuse the application.
This case has been added to the Affidavits and Disclosure sections under Family Provision claims in 101 Succession Answers (NSW).
Disabled adult child claimant
In Cowap v Cowap [2020] NSWCA 19 the Court of Appeal considered the competing claims on an estate of a disabled adult son, the applicant/respondent, and an elderly widow, the respondent/appellant. The son was in fact a child of the widow’s previous marriage but had been adopted by the deceased.
The court at first instance granted the son provision of $600,000. This meant the widow had to sell the former matrimonial home where she had long resided with the deceased and to which she had significant emotional attachment. The son had ‘severe and permanent disability, including cognitive impairment’ because of which there was strong evidence in support of his need for provision. The widow, to whom the entire estate had been left, also had a strong claim on the estate as it was a long marriage.
The sale of the property allowed the widow to purchase another smaller property and maintain her existing income. The judge at first instance, in granting provision to the son, decided that was an appropriate outcome given the 91-year-old widow would inevitably leave the property in due course in any event.
The Court of Appeal held that the first instance judge had made no error and dismissed the appeal.
Of further interest in this case is that the Court of Appeal refused to admit on the appeal any new evidence of valuation of the property. [35].
This case has been added to the Adult Children section under Family Provision claims in 101 Succession Answers (NSW).
