Another family provision claim by an adult child

In November 2021, the Supreme Court considered yet another claim for further provision by
an adult child in respect of his deceased father’s estate. As a child of the deceased, the
plaintiff was eligible to bring a family provision claim within 12 months of his father’s death.
The value of the estate was around $1,500,000. The deceased had three children. Provision
was made in the father’s will for the Plaintiff and his sister with the remainder of the estate
left to the remaining son who was also the executor of the estate and the defendant in the
proceedings.

The Court estimated that the existing provision for the Plaintiff was around $335,000. The
Plaintiff sought further provision such that his total would be $580,000.
In the case of claims by adult children, the Court needs to be satisfied that the provision was
inadequate and not proper having regard to all of the circumstances of the case including the
financial needs of the parties, their relationships and the size of the estate. The Court does
not require equality between siblings and there is no general principal of fairness which
governs the discretion of the Court.

The Plaintiff claimed to have a good relationship with his father and in light of his poor
financial circumstances, claimed that his father owed him a responsibility to leave a greater
provision for him from the estate. The Court noted that the executor had already received a
gift of $500,000 before the death of the father. Further, the executor and the remaining
sibling chose not to put on any evidence of their financial circumstances which allowed the
Court to infer that they had no significant or competing financial need.

In this case, the Plaintiff did not have secure accommodation or income to meet his
expenditure. The Plaintiff had no dependents or family responsibilities. The Court noted that
the plaintiff was at least in part, the author of his own misfortune and acknowledged the
significant contribution made by the executor. The Plaintiff sought sufficient funds to allow the
purchase of a two-bedroom unit. However, this claim was considered excessive in the
circumstances.

The Court determined an additional provision of $120,000 was appropriate which brought the
total provision to $453,000.

The Court was critical of the failure of the deceased’s three children to reach an agreement
and as to the level of legal costs incurred by the parties. This concern is frequently raised by
the Court in these matters and it is important for parties to be aware that the Court has
considerable flexibility in respect of who pays the legal costs in these cases which can
include limiting costs paid by the estate or requiring the plaintiff to pay the costs. Parties
cannot assume that the legal costs will be covered by the estate.

Case: Semitecolos v Semitecolos [2021] NSWSC 1508

Related Tag: Newcastle Lawyers, Child Custody Lawyer Newcastle

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