Nielsen v Kongspark

The case of Nielsen v Kongspark involves a claim by an adult child, the plaintiff, for a family provision order under Chapter 3 of the Succession Act 2006 (NSW). The plaintiff initially sought the order in respect of both the estate of his father, who died intestate in 2009, and his mother, who died in 2017. However, during the proceedings, the plaintiff abandoned the claim regarding the father's estate and proceeded only with the claim against the mother's estate. The defendant, another adult child of the parents, opposed the application for an extension of time, as required under section 58(2) of the Succession Act. The plaintiff was required to demonstrate sufficient cause for the late application.

The primary legal issues before the court involved the validity of the plaintiff's claim regarding the mother's estate and the need for a notional estate order to determine the nature and quantum of the provision to be made. The court had to consider whether there were special circumstances that justified the making of a notional estate order, given that the only property capable of satisfying the order was an interest in real estate held by the mother as a joint tenant with the defendant. Additionally, the court assessed the period of estrangement between the plaintiff and the mother, and the impact of the plaintiff's attempts to re-establish contact, which the mother found distressing.

The court found that the plaintiff had not demonstrated sufficient cause for the late application regarding the mother's estate, despite the efforts to re-establish contact. The court concluded that the mother was not interested in re-establishing contact, and the plaintiff's attempts caused her additional anguish. Consequently, the court dismissed the plaintiff's application. The court determined that there were no special circumstances justifying a notional estate order, as the only property available to satisfy the order was held jointly with the defendant, and the mother's will had already made adequate provision for the plaintiff.