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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- AGLC
- R v F [2025] SASC 92
- Case
- [2025] SASC 92
- Decision Date
CaseChat Overview and Summary
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
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.