31 January, 1, 2, 3, 8 and 11 February 2022. Closing submissions to 6 April 2022.
Date of orders:
14 October 2022
Decision date:
14 October 2022
Jurisdiction:
Equity - Family Provision List
Before:
Henry J
Decision:
Summons dismissed with costs
Catchwords:
SUCCESSION – family provision – claim by adult plaintiff who was stepson of deceased – where plaintiff lived with deceased during teenage years – where deceased and plaintiff’s mother divorced 31 years ago – where no contact between plaintiff and deceased after 2004 – where deceased’s will provided for whole of estate to be left to his only biological child – not a large estate – where strong competing claim of biological son – whether plaintiff eligible as “child” of deceased – whether factors warranting order – no provision ordered
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Brown v Brown [2022] NSWSC 1393
Case
[2022] NSWSC 1393
Decision Date
CaseChat Overview and Summary
In the matter of Brown v Brown, the deceased left his estate to his only biological child, excluding his stepson who sought a family provision order. The deceased and the plaintiff’s mother divorced over 30 years ago, and the plaintiff, the stepson, had not been in contact with the deceased since 2004. The plaintiff sought a family provision order from the estate, claiming he was in need of maintenance and support from the deceased’s estate. The deceased’s will provided that the whole estate would be left to his biological child, and the estate was not considered large.
The legal issues for the court to decide included whether the plaintiff, as a stepson, was eligible to be considered a “child” of the deceased for the purposes of making a family provision claim. The court also had to determine whether the factors present in the case warranted an order to be made in the plaintiff’s favour. The court considered the nature and extent of the relationship between the plaintiff and the deceased, the length of time the plaintiff had lived with the deceased, and the extent to which the plaintiff had contributed to the deceased’s estate during the marriage.
The court held that the plaintiff was not eligible to be considered a “child” of the deceased for the purposes of a family provision claim, as the marriage between the deceased and the plaintiff’s mother had ended over 30 years ago, and there had been no contact between the plaintiff and the deceased since 2004. The court also found that even if the plaintiff was eligible, the factors present in the case did not warrant an order to be made in his favour. The court noted the strong competing claim of the deceased’s biological child, and the fact that the estate was not considered large. Therefore, the court did not make a family provision order in the plaintiff’s favour.