Bates v Cooke

[2015] NSWCA 278

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Bates v Cooke [2015] NSWCA 278
Hearing dates:	3 August 2015
Decision date:	16 September 2015
Before:	Meagher JA at [1]; Leeming JA at [2]; Sackville AJA at [14]
Decision:	1. Appeal dismissed. 2. The appellant pay the respondent’s costs of the appeal.
Catchwords:	SUCCESSION – family provision order – applicant claims a notional estate order from his mother’s estate – mother and applicant’s stepfather made mirror wills leaving their estates to each other and then to the applicant and four siblings equally – applicant has no immediate needs but claims that provision should have been made for his retirement – whether applicant should be precluded from claiming by reason of imprudent investment decisions – whether primary Judge erred in finding that there was little chance that the stepfather would change his will – whether primary Judge erred in rejecting the claim
Legislation Cited:	Family Provision Act 1982 (NSW), s 9 Succession Act 2006 (NSW), ss 57, 59, 60, 73, 87; Pt 3.2; Pt 3.3
Cases Cited:	Andrew v Andrew [2012] NSWCA 308; 81 NSWLR 656 Bates v Cooke [2014] NSWSC 1259 Bates v Cooke (No 2) [2014] NSWSC 1322 Burke v Burke [2015] NSWCA 195 Phillips v James [2014] NSWCA 4; 85 NSWLR 619 Poletti v Jones [2015] NSWCA 107 Re Dawson (decd) [1966] 2 NSWLR 211 Smilek v Public Trustees [2008] NSWCA 190 Verzar v Verzar [2014] NSWCA 45 Vigolo v Bostin [2005] HCA 11; 221 CLR 191
Category:	Principal judgment
Parties:	Bradley Bates (Appellant) Robert Henry Cooke (Respondent )
Representation:	Counsel: A Crossland (Appellant) BJ Skinner (Respondent)   Solicitors: Low Doherty & Stratford (Appellant) Djekovic, Hearne & Walker (Respondent)
File Number(s):	2014/308862
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Equity Division Citation: [2014] NSWSC 1259; [2014] NSWSC 1322 Date of Decision: 15 September 2014; 25 September 2014 Before: Kunc J File Number(s): 2013/341075

HEADNOTE

[This headnote is not to be read as part of the judgment]

The mother and stepfather (respondent) of the appellant made mirror wills in 2006, leaving their estates to each other and then to the appellant and his four siblings equally. The mother predeceased the stepfather. The appellant sought a family provision order out of his mother’s notional estate, most of which was property held by his stepfather. The appellant did not have immediate financial needs but wished to build a suitable amount of superannuation for his retirement.

The primary Judge rejected the appellant’s claim. On appeal, the appellant contended that the primary Judge erred in finding that:

(1) the appellant was precluded from claiming provision from the notional estate by reason of his own improvident investment decisions; and

(2) there was no real risk that the respondent would change his will to reduce the entitlement of the appellant as a beneficiary.

Held, dismissing the appeal:

In relation to (1)

It would be an error to apply a principle that disentitles an adult…