R v F

Case [2025] SASC 92

SUPREME COURT OF SOUTH AUSTRALIA

(Civil: Application)

In the Estate of R (DECEASED)

R & ORS v F & ORS

[2025] SASC 92

Judgment of the Honourable Justice McIntyre  

SUCCESSION - ADMINISTRATION OF ESTATE - DISTRIBUTION

SUCCESSION - FAMILY PROVISION - ELIGIBLE APPLICANTS - GRANDCHILD

SUCCESSION - FAMILY PROVISION - REQUIREMENT FOR ADEQUATE AND PROPER MAINTENANCE - DUTY OF TESTATOR - OTHER APPLICANTS

All four applicants are grandchildren of the deceased. The applicants are, or allege to be, related to the deceased by way of their father, who predeceased his mother (‘the deceased’) by five years. He died bankrupt and without leaving an estate.  The first and second applicant are children of their father’s marriage. The third and fourth applicant are children of their father’s relationship with their mother. 

The applicants were beneficiaries of the deceased’s penultimate will but were removed by way of the final will. The deceased’s daughters are the sole beneficiaries of the final will. The value of the deceased’s estate was approximately $8.5 million. In 2022 there was a partial distribution of the estate to the beneficiaries. Approximately $1.39 million remains in the estate.

The applicants seek an order for provision to be made out of the deceased’s estate for their maintenance, education and advancement pursuant to s 7 of the Inheritance (Family Provision) Act 1972 (SA) (‘IFP Act’). The third and fourth applicants seek a further order in relation to their paternity, a declaration that they are children of the deceased’s son, pursuant to s 9 of the Family Relationships Act 1975 (SA) (‘FR Act’).

In relation to s 7 of the IFP Act, the applicants submit that, given the size of the estate, their relationship with the deceased and their financial circumstances, a wise and just testator would have considered it their moral duty to make provision for the applicants in their will. They submit that the penultimate will is reflective of that moral duty.

The respondents are the deceased’s children, in their capacity as executors and beneficiaries of the final will. The respondents contend that the deceased’s final will reflects what she considered to be her moral duty. They contend that the deceased did not have an ongoing relationship with the applicants, did not assume responsibility for their care or maintenance and that the applicants are maintained by their respective mothers.

Held:

1. Pursuant s 9 of the FR Act, the third and fourth applicants are children of the deceased’s son. 

2.The applicants are the deceased’s grandchildren and are eligible applicants under s 6(h) of the IFP Act.

3.The applicants have been left without adequate provision for their proper maintenance, education and advancement.

4.      The applicants are each entitled to a sum of $125,000, inclusive of interest.

Inheritance (Family Provision) Act 1972 (SA) ss 6, 7 ; Family Relationships Act 1975 (SA) s 9; The Succession Act 2023 (SA) s 115, sch 4 s 2, referred to.
De Jonge v Soar & Ors [2024] SASC 88; Hughes v National Trustees, Executors…

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R v F [2025] SASC 92
Case
[2025] SASC 92
Decision Date

CaseChat Overview and Summary

In the matter of R v F, the court was presented with a complex succession dispute concerning the distribution of the deceased's estate. The deceased, who passed away in 2010, had five children, one of whom, JR, had fathered twins, IM and MM, with another woman, VM, prior to his death. The central issues before the court were the declaration of parentage for JR as the father of IM and MM under section 9 of the Family Relationships Act 1975, the eligibility of the grandchildren to apply for family provision under section 6(h) of the Family Law Act 1975, and whether they were left without adequate provision for their maintenance, education, and advancement in life.

The court was tasked with determining whether JR was indeed the biological father of the twins, a question that required credible corroborative evidence due to JR's death. The court found that the evidence presented was sufficient to establish parentage on the balance of probabilities, satisfying the requirements of the Act. Furthermore, the court held that the grandchildren, CR, MR, IM, and MM, were eligible applicants under the Family Law Act, as they were the children of the deceased's son. The court also found that these grandchildren had been left without adequate provision for their proper maintenance, education, and advancement in life, entitling them to seek family provision.

The court ultimately concluded that each of the four grandchildren was entitled to a sum of $125,000, inclusive of interest, to adequately provide for their needs. This decision was grounded in the court's finding that the deceased's estate provided sufficient resources to meet these needs. The final orders of the court declared JR as the father of IM and MM, established the eligibility of the grandchildren as applicants under the Family Law Act, and granted each grandchild the specified monetary provision from the deceased's estate.

Orders

Orders of the court

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Background

Background to the litigation

For the reasons that I now deliver I find that:1. It is appropriate to make a declaration under s 9 of the FR Act that JR is the father of both IM and MM.2. CR, MR, IM and MM, as Deceased’s grandchildren, are eligible applicants under s 6(h) of the IFP Act. 3. CR, MR, IM and MM have been left without adequate provision for their proper maintenance, education and advancement in life; and4. CR, MR, IM and MM are entitled to the sum of $125,000 each, inclusive of interest. Background The deceased was born in San Procopio, Reggio Calabria Italy, on 2 July 1935. The deceased came to Australia in the early 1960s and met RR. They married in 1963. Prior to their marriage, RR had acquired a large parcel of land at Athelstone, South Australia. This land included a house. RR and the deceased had five children: RF born on 25 April 1964, FR born on 19 September 1965, AC born on 25 December 1969, MB born on 17 November 1971 and JR born on 4 January 1973. They brought their children up in the original house on the Athelstone block until about 1973, when they moved into a new house that they had built on the other side of the block. The original house was demolished, but they retained the land on which it was situated on the same title as the new house. The block was used for growing fruit, vegetables, goats and chickens for the family. The deceased did not work in paid employment. Her English was limited. Her main language was the Calabrese dialect of Italian. RR spoke English very well and was employed for many years at the Adelaide Railway Station. Unfortunately, he was diagnosed with tuberculosis in the early 1970s and could not continue to work. He remained in poor health and in receipt of a pension until his death in 2010. The deceased inherited her husband’s estate including the Athelstone land. The deceased and RR’s children lived at home with their parents until they married and had children of their own. RF married in 1988. She has two adult children. FR married in 1988 and has four adult children. AC married in 1990 and has four adult children. MB married in 1995 and has two adult children. JR remained at home until he married DR on 13 April 2002. JR and DR have two children. CR born on 30 July 2007 and MR born on 9 November 2012. DR and JR eventually separated. The precise date and circumstances are controversial, but there is no dispute that they were separated from at least 2013. Proceedings were instituted in the Federal Circuit Court of Australia (“Family Court”) in relation to property and custody matters. They did not divorce. VM met JR through a mutual friend in around January 2010. VM was at the time single with a daughter who is now an adult and financially independent. VM wished to have another child but was not in a relationship. She discussed that with JR who was willing to father a child with her. VM and JR saw each other approximately four or five times over a three-month period from January to March 2010. During the course of that relationship, VM became pregnant. VM gave birth to twin daughters, IM and MM, on 7 December 2010. JR was informed of the birth of his daughters and expressed a wish to see them one day. He did not meet the girls in person but received updates from VM by text and telephone. He did not contribute to their maintenance. VM was the sole carer for the girls and supported them from her income. JR did not tell the deceased about IM and MM. the deceased only became aware of their existence after JR’s death.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Section 9 of the FR Act provides as follows: 9—Declaration of parentage (1) Where— (a) a female person alleges that a particular person is the father or co-parent of her child; or (b) a person alleges that the relationship of father or co-parent and child exists between that person and another person; or (c) a person whose pecuniary interests, or whose rights or obligations at law or in equity, are affected according to whether the relationship of father or co-parent and child exists between two persons desires the court to determine whether such relationship exists between those persons, that person may apply to the Court for a declaration of parentage, and if it is proved to the satisfaction of the Court that the relationship exists, the Court may make such a declaration. (2) A declaration may be made under this section whether or not one or both of the persons in relation to whom the declaration is sought are dead. (3) The Court should not proceed to make a declaration under this section unless it is satisfied, as far as reasonably practicable, that all living persons whose interests are affected by the declaration have had the opportunity to make representations to the Court in relation to the subject matter of the proceedings.(4) Where a person claims that the relationship of father or co-parent and child exists between two persons, and one or both of those persons are dead at the time of the proceedings, a declaration shall not be made under this section unless the claim is supported by credible corroborative evidence. An application under s 9(1) of the FR Act is to be determined in accordance with the ordinary civil standard of proof without reference to, or application of, the considerations in Briginshaw v Briginshaw.[18] It is therefore necessary to prove facts from which a conclusion could be reached in the sense of an actual persuasion on the balance of probabilities that JR was the biological father of IM and MM.[19] Given that JR is deceased, s 9(4) of the FR Act requires that there be credible corroborative evidence to support their claim. Corroboration as required under s 9(4) was considered in H, AM v L, L where Nicholson J stated as follows: Corroboration does not mean the same thing as independent proof of the material fact in controversy. Corroboration need not be independent evidence of everything which the corroborated witness says. Otherwise, the evidence of the latter (in this case Mrs H) would be unnecessary. What is capable of amounting to corroboration is a question of law. Whether in a particular case it is to be accepted as such is a question of fact for the tribunal of fact. Counsel for the plaintiff argued that the evidence of Mrs H, itself, satisfied the requirement for credible corroborative evidence. This cannot be so. Her evidence is the primary evidence in support of the plaintiff’s “claim”; it cannot also be the corroborating evidence. As Isaacs J observed in Ridley v Whipp, corroboration must be by independent testimony and must be such as by its own force to support the contention in question.[citations omitted][18] (1938) 60 CLR 336.[19] H, AM v L, L (2013) 121 SASR 1.