Phillips v James

The appeal concerned a family provision claim brought by Brian Phillips (the applicant) against the estate of the deceased, where the respondents were Gaye James and Gary Phillips. The core of the dispute revolved around whether the provision made for the applicant in the deceased's will was insufficient, particularly in light of distributions made from the estate, including to the respondents, within the statutory time limit for making such claims.

The Court of Appeal was required to determine whether the deceased had failed to make adequate provision for the proper maintenance, education, and advancement in life of the applicant. A further key issue was whether an order designating property as "notional estate" could be made even if the original asset could not be traced into it, and whether such an order should be refused on discretionary grounds, considering the executors' distribution of the estate, including to themselves, before the family provision application was determined.

The Court applied the principles established in cases such as *Singer v Berghouse* and *Vigolo v Bostin*, which outline a two-stage process for assessing family provision claims. This involves first determining if the provision made was inadequate, considering the applicant's circumstances, the estate's size and nature, and the relationships with other beneficiaries. If inadequacy is found, the second stage involves determining the appropriate provision. The Court noted that while the two-stage approach has generally been accepted, the language of the *Succession Act 2006* (NSW) may not strictly align with this framework, particularly in light of the factors listed in section 60(2) that the court must consider.

The Court allowed the appeal, setting aside the orders made at first instance. It ordered that further provision of $100,000 be made in favour of the applicant out of property to be designated as notional estate, reserving the question of which property would constitute notional estate for further submissions from the parties.