FPA x2: Grandson vs Daughter – Close Personal Relationship


This month, the Supreme Court of New South Wales, determined a family provision claim by a self-sufficient adult daughter and an adult grandson.

In the case of Re Filomena Rodi, deceased [2016] NSWSC 1696, the deceased was survived by four children, 2 daughters and 2 sons, and had left her estate to them equally.
Two separate family provision claims were brought against the estate: one by an adult daughter (who was to receive a one quarter share of the estate under the will) and one by an adult grandson (who was left no provision under the will).

The first plaintiff – Adult Daughter

The first plaintiff, the adult daughter of the deceased, was aged 67 years at the date of the trial.  The first plaintiff had appeared to have brought her claim on the basis of her dissatisfaction of her mother revoking a former will that left her a half share in the estate, with her sister, to the exclusion of her brothers.

The first plaintiff was settled, content, in a marriage of long duration and in generally good health.  As empty-nesters, she and her husband live in a modern five-bedroom property valued at approximately $2million (with a mortgage of less than $100,000).  It was accepted that the first plaintiff’s net valuedbjr10fetee-aimee-vogelsang of assets was approximately $979,000 and her husband’s approximately $1.4million.

In dismissing the claim for further provision, the Court found that the application must fail at the threshold test because of the “amplitude of her own resources and those of her husband” [emphasis added] and “because (whether or not there were inequalities in the treatment of their children by the deceased and her late husband) the first plaintiff has no moral claim to the bounty of the deceased which is superior to those of her siblings in a family which (I accept) can generally be characterised, all round, as a close and loving one” per Lindsay J at paragraph 42

At paragraph 45, Lindsay J said

…the Succession Act does not provide a vehicle to subject the testamentary freedom of a testatrix to a disappointed beneficiary’s complaints of perceived inequality of treatment extending over a lifetime, particularly in circumstances in which the complainant has herself experienced substantial success in life.

The second plaintiff – Adult Grandson

The second plaintiff, the adult grandson of the deceased, was aged approximately 39 years at the date of the trial. He resided with the deceased for approximately a decade before her death, in a relationship akin to loco parentis (i.e. parental relationship).

In considering the relationship of the second plaintiff as a potential eligible applicant, the Court discussed the level of dependency of the second plaintiff upon the deceased during her lifetime.  As the second plaintiff was a companion and carer for the deceased, the Court said that an element of co-dependency between the deceased and the second plaintiff did not preclude the characterisation of the second plaintiff of being “photo-1454875392665-2ac2c85e8d3ewholly or partly dependent” on the deceased (paragraph 49). The second plaintiff offered support to the deceased to enable her to remain in her home, despite her advancing age and paid no rent or board during the time he resided with her.  In the later years, the second plaintiff began paying the rates and electricity charged on the property.  The Court found that the second plaintiff was “wholly or partly dependant on the deceased” and that the deceased was living with the second plaintiff in a “close personal relationship” within the meaning of the Act.

The first plaintiff contested the second plaintiff’s standing to bring the claim suggesting that the relationship between the deceased and the second plaintiff was commercial in nature in relation to providing domestic support and personal care for the deceased and that he was there by order of the family.  The Court rejected this submission stating that the strong personal relationship between the deceased and the second plaintiff which underpinned the support and care for her was on the second plaintiff’s own account. The Court further said that it could not then follow that such provision of support and care could be characterised as no more than that of a servant or agent of those family members who invited him to provide his support and care to his grandmother (paragraph 55).

Ultimately, he was nobody’s agent but his own and, respecting the autonomy of his grandmother, he was resident in her home as her invitee, not as the invitee of her children.  He could not, and would not, have lived with her for a decade without her agreement. (paragraph 55).

The Court found that the second plaintiff was an eligible person within the meaning of the Act.

In determining the quantum of provision for the second plaintiff, the Court considered the following:

  • He is a sole parent to an infant child
  • He had a one half share in an investment property (encumbered by mortgage in his name)
  • He was a qualified mechanic and youth worker and therefore able to earn an income
  • He has superannuation entitlements of approximately $100,000 (although no readily accessible)
  • He has limited savings, a credit card debt and ongoing mortgage repayments
  • He is dependent on Centrelink for sole parenting allowance and family assistance
  • His income is not likely to meet his expenses
  • He sought provision to purchase a 2 bedroom unit property, discharge his credit card debt and furnish a unit property

The defendant’s contemplated provision not exceeding $50,000 to $100,000 and the second plaintiff advanced a claim for approximately $400,000.

The Court ordered that the second plaintiff receive a legacy of $200,000 as further provision from the estate and that the estate bear the costs on the ordinary basis.

The Court further ordered that the first plaintiff’s claim be dismissed and that she pay her own costs of the proceedings.

You can read the case here.




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