Adult Children of Deceased to proceed with Caution; Family Provision declined for Adult Son

Harris v Harris [2018] NSWSC 552

The recent decision of the Supreme Court of New South Wales (Ward CJ in Eq) stands as a warning to adult children of a deceased bringing family provision claims. It is a helpful illustration of the way in which the Court balances the competing needs of applicants and beneficiaries. Adult children intending to make a claim for provision should very carefully weigh up what is often a complex factual matrix including the size of the estate.

In Harris, the Court declined to make an order for provision. The parties were ordered to bear their own costs (which were not insubstantial; cumulatively around $150, 000).   The Court was not persuaded that the deceased, in not making any provision for the adult son, failed to make ‘proper’ provision for his maintenance, education and advancement. Her Honour stated:

It cannot in my opinion seriously be suggested that community expectation would be that the deceased should put his long-standing wife in a position where she is required to vacate her villa in the retirement village…moreover, any reduction in her capital (comprised of the combination of her and the deceased’s superannuation funds) will necessarily reduce her monthly income, which only just covers her essential expenditure at the present time…this would have a quite significant effect on her financial circumstances.

As with most judgments in family provision claims, the decision traverses the many factors set out in section 60(2) of the Succession Act 2006, including the relationship between the applicant and the deceased, the nature and size of the estate, the financial resources and needs of the applicant and beneficiaries and the testamentary intentions of the deceased.

The facts in this decision were interesting.  Although the son had relatively dire life circumstances, these were balanced against the real needs of the beneficiary (the widow), in particular her ongoing significant medical costs and basic living expenses, the small nature of the estate and the difficulty of encroaching into the potential notional estate where its primary asset was a lease of a retirement village shared by the widow, and which, if accessed, would require a sale, rendering her without accommodation.


The Court adopted the multi-faceted evaluative approach to the question of provision as recently set out by the Court of Appeal in Sgro v Thompson [2017] NSWCA 326 but noting also the distinction emphasised by Basten JA in Chan v Chan [2016] NSWCA 222 at [22] between an applicant’s needs and the adequacy of provision.


Andrew, aged 42, is one of two surviving children of the deceased. His parents separated when he was about 3.  He lived (primarily) with his mother after that time. She is still alive. His father married Jennifer, the widow, when Andrew was about 5. They remained together in a solid relationship for the next 35 years until his death.

The Will

The deceased’s will appointed Jennifer as his sole executrix and gave all his estate to her. There was provision for his daughter if his wife predeceased him. No provision was made for Andrew and there was no reference made to him in the will.

The Estate

The value of the estate was small. It comprised less than $8,000 after payment of liabilities. The potential gross notional estate was also relatively modest; around $600,000.  A significant portion of it was the deceased’s half interest in a 99-year lease of a retirement villa, which passed to Jennifer by survivorship and which could only be realised if there were to be a sale of the lease.

The Applicant

Andrew is single with no dependants. He rents a modest cottage in a small country town. He is unemployed and receives a disability support pension.  He has a form of bipolar.  He had little by way of assets, the main being a car.

His claim for provision was based on his asserted need to improve his quality of life, provide him with stable accommodation, access private medical care and to facilitate workplace training opportunities.

The Beneficiary

Jennifer is 72. She has suffered from breast and lung cancer and suffers other medical conditions including osteoporosis and anxiety and depression. She has a 70% chance of breast cancer recurrence. She has high monthly pharmaceutical and regular medical expenses.  She has modest assets of about $300, 000, the majority being her half share in the lease of the retirement village apartment.  Her income is low; chiefly being an allocated pension.

Claims for Adult Children

Andrew relied on Gray v Mather [2016] NSWSC 699 at [90]-[91] and Epov v Epov [2014] NSWSC 1086 at [153]-[156]).  In particular, he relied on the statement by Hallen J in Epov, at [153(f)]:

The adult child’s lack of reserves to meet demands, particularly of ill health, which become more likely with advancing years, is a relevant consideration: MacGregor v MacGregor [2003] WASC 169, at [179]-[182]; Crossman v Riedel [2004] ACTSC 127, at [49]. Likewise, the need for financial security and a fund to protect against the ordinary vicissitudes of life, is relevant: Marks v Marks [2003] WASCA 297, at [43]. In addition, if the applicant is unable to earn, or has a limited means of earning, an income, this could give rise to an increased call on the estate of the deceased: Christie v Manera [2006] WASC 287; Butcher v Craig, at [17].


If you would like to have advice in respect of prospects in a family provision claim or to conduct proceedings, please contact me.


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