Tapp v The Public Trustee (No 2)

The case of Tapp v The Public Trustee (No 2) involved the applicant, Tapp, seeking a family provision order from the estate of a deceased individual, managed by the Public Trustee. The dispute centred around the adequacy of the provision made for the applicant from the deceased's estate, which was characterised by a cash deficiency. The matter was heard in the Supreme Court of New South Wales.

The court was required to determine several legal issues, primarily centred on the discretion exercised by the Public Trustee in administering the estate and the subsequent application for a family provision order. The central question was whether the estate, given its cash deficiency, could adequately provide for the applicant under the Family Provision Act 1975 (NSW). Additionally, the court had to consider the appropriate exercise of its discretion regarding costs, given that the applicant was wholly successful in their claim.

The court reviewed the statutory framework under the Family Provision Act, noting that the exercise of discretion in such matters must be guided by principles of fairness and justice. The court acknowledged the small size of the estate and the cash deficiency, which complicated the provision for the applicant. It examined the relevant statutory criteria and the evidence presented, ultimately concluding that the estate could not make adequate financial provision for the applicant. The court also carefully considered the factors pertinent to the costs decision, including the outcome of the case and the nature of the estate. It held that, given the applicant's success and the small size of the estate, the costs should be awarded on an indemnity basis.

In conclusion, the court granted the applicant's application for a family provision order, recognising the insufficiency of the estate's provision. Regarding costs, the court awarded the applicant costs on an indemnity basis, taking into account the wholly successful outcome and the small size of the estate.