Time for application extended and provision ordered from notional estate
Catchwords:
SUCCESSION – family provision and maintenance – failure by testator to make sufficient provision for applicant – only notional estate available – application by previously healthy adult son who suffered heart attacks and seriously debilitating illnesses after deceased’s death
The plaintiff, Nicholas Cowap (referred to throughout these proceedings as "Nick"), sues out of time for provision from the estate of his late adoptive father (the "deceased"). Without disrespect, I will refer to the various family members by their given names.
The deceased left his estate to the defendant, Nick's mother ("Barbara"). Barbara is 90 years old. Nick, now 64 years old, is the child of Barbara's first marriage, which ended with the death of her husband in a plane accident. Nick has five adult half-siblings, being the children of the marriage between Barbara and the deceased.
The deceased died on 11 December 2015, having enjoyed a happy marriage of 57 years with Barbara. By his will made on 10 August 2012 (the "Will") he left his entire estate to her. However, excluding a few hundred dollars, the deceased's assets (including the family home and property where they had lived since 1987) were held with Barbara as joint tenants, so that they did not fall into his estate and she succeeded to them by survivorship.
At the date of the deceased's death, Nick was in good health after a career which included being a ski instructor and a businessman. These proceedings have their origin in the sad fact that Nick suffered serious heart attacks on 26 May and 1 June 2016, only six months after the deceased had died. After several weeks in a coma and many months in hospital, Nick has been left with numerous significant disabilities which mean that he cannot look after himself and, among other things, must use a wheelchair because it is difficult for him to walk any distance unaided.
Nick has no assets. His only income is his disability pension and the benefits to which he is entitled under the NDIS scheme. He is currently cared for by his former de…
Grounds of appeal
[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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Details
AGLC
Cowap v Cowap [2019] NSWSC 1104
Case
[2019] NSWSC 1104
Decision Date
CaseChat Overview and Summary
In the matter of Cowap v Cowap, the court was called upon to determine whether the deceased had made sufficient provision for his son, who had suffered severe health issues after the deceased's death. The son, who was previously healthy, experienced heart attacks and debilitating illnesses, significantly impacting his ability to maintain his lifestyle. The court was required to assess the application under the Family Provision and Maintenance Act, considering the deceased's estate and the son's needs.
The central legal issue before the court was whether the son had made out a case for inadequate provision under the Act, given that the deceased's estate was not substantial and was largely notional. The court needed to weigh the son's health decline and its impact on his ability to maintain his standard of living against the limited resources available in the estate. Additionally, the court had to consider the deceased's intentions and the provisions made in the will.
The court found that the son's health issues, which arose post-decease, constituted a significant change in circumstances that the deceased could not have anticipated. The court emphasised the importance of family provision claims in ensuring that family members are not left destitute. The court concluded that the estate, despite being limited, did not provide sufficient means for the son to maintain his lifestyle. Therefore, the court granted the son's application for adequate maintenance, directing that he receive a specified amount from the estate to meet his needs.