Kohari v NSW Trustee and Guardian

The case of Kohari v NSW Trustee and Guardian involved the Plaintiff, who sought a family provision order from the deceased’s estate under section 57(1)(c) of the Succession Act 2006. The dispute centred on the validity of the Plaintiff’s claim to be the son of the deceased, which the Defendant contested. Consequently, the Defendant applied for parentage testing under section 26 of the Status of Children Act 1996. The court was required to determine whether the Plaintiff was indeed the son of the deceased, and if so, whether the discretionary considerations warranted granting the family provision order.

The primary legal issue before the court was whether the Plaintiff met the parentage test required to establish his claim as the son of the deceased. This required examining the statutory framework governing parentage testing and the court’s discretion under the Succession Act. The court had to balance the statutory provisions against the discretionary considerations outlined in section 57(2) of the Succession Act, which includes factors such as the moral duty of the deceased to provide for the applicant and the applicant’s financial resources and prospects.

In delivering the judgment, the court first examined the statutory provisions for parentage testing and determined that the Plaintiff’s claim warranted such testing. The court found that it had the power to order tests on family members, including the deceased, to ascertain parentage. The DNA test subsequently confirmed that the Plaintiff was indeed the son of the deceased. The court then turned to the discretionary considerations and found that the Plaintiff’s moral claim was valid and that the deceased had a moral duty to provide for him. Consequently, the court exercised its discretion to make a family provision order in favour of the Plaintiff.

The final orders of the court were that the Plaintiff was recognised as the son of the deceased, and a family provision order was made in his favour. The court ordered the Defendant to pay a specified sum from the estate to the Plaintiff. This decision underscored the court’s role in applying both statutory and discretionary considerations in family provision claims, particularly where parentage is contested.