Decision Impossible: FPA by disabled son against widow, forcing sale of family home in notional estate (NSW)

Recently, the NSW Supreme Court determined a very difficult family provision application by an adult son, in circumstances where the adult son was otherwise healthy when the deceased passed away, but subsequently suffered significant health issues following his father’s death. Further, the only available assets for such a family provision claim were via notional estate.

In the case of Cowap v Cowap [2019] NSWSC 1104, Nick (the Plaintiff) was aged 64 years at trial was the adoptive son of the deceased. The deceased left his estate to his widow, Barbara, who was Nick’s mother and aged 90 years. Nick was Barbara’s child from an earlier marriage. The deceased was also survived by 5 children, who were Nick’s half-siblings.

In his Will, the deceased left his entire estate to Barbara. Aside from a few hundred dollars, the deceased’s estate was held jointly with Barbara and, therefore, the assets that he held passed by survivorship to Barbara. The notional estate was estimated $1.4 million, made up of the family home, that the deceased and Barbara shared since 1987, and a small share portfolio.

At the date of his adoptive father’s death, Nick was in good health and previously had a career as a ski instructor and businessman. Unfortunately, and in a very sad set of circumstances, Nick suffered serious heart attacks within 7 months of the deceased’s death. After being in a coma and spending months in hospital, Nick was then left with significant disabilities which left him in need of constant care and a wheelchair. Nick’s health issues, following his heart attacks, included:

  • hypoxic brain injury, resulting in ongoing cognitive deficit;
  • two stents and give heart bypass surgeries;
  • a pacemaker and defibrillator;
  • nerve damage resulting in bladder dysfunction;
  • critical illness myopathy and neuropathy (from being on life support in ICU);
  • osteoporosis;
  • unilateral hearing loss;
  • ulcerative procitis and focal colitis;
  • Crohn’s disease;
  • damaged spine; and
  • mental health issues.

Nick had no assets and was receipt of a disability pension and benefits under the NDIS scheme. Nick was being cared for by his former defacto partner. Nick lived with his former defacto and their 20 year old daughter, in his former defacto’s rented home.

Nick filed his application almost one year out of time and such had to demonstrate ‘sufficient cause’ to bring his claim so far out of time. Nick’s claim for provision was for $600,000 which would enable him to purchase a modular home and land and a car, and provide a fund for contingencies.

Barbara opposed Nick’s application.

The real practical difficulty arising from Nick’s claim was that any provision would require the sale of the family home and whilst the sale or otherwise of the house is not a matter for the Court to determine, the Court noted that it’s exercise of discretion in the matter would be approached with this in mind.

The Court noted it’s “greatest respect” that Barbara did not want to leave her home and that she could remain there with minimal assistance, but also noted that Nick’s needs were “real and pressing” (para 10).

The Court noted the principles that relate to family provision claims by adult children and noted the recent decision of Grants v Roberts, Smith v Smith, Roberts v Smith and Curtis v Smith [2019] NSWSC 843, where Ward CJ, in that case, said:

166. Second, as to the position of claims by adult children of the deceased, each application for provision must be dealt with by the Court on its merits on the evidence before the Court.

167. It has been asserted, in a number of cases in the past (both in applications for provision under the previous legislation and under the currently applicable provisions of the Succession Act), that it cannot generally be said that a parent has an obligation to provide an adult child with a home (see Fiorentini v O’Neill [1998] NSWCA 79 (at 7); see also Delaney v Jones [2008] NSWSC 229). It has, however, also been recognised that there are circumstances in which there may be a moral obligation on the part of a parent, in particular circumstances, to make provision for an adult child (see Taylor v Farrugia [2009] NSWSC 801 at [57]).

168. As the Court of Appeal in Steinmetz v Shannon [2019] NSWCA 114 (Steinmetz v Shannon) has recently made clear, guidelines (of the kind that have been expressed in various cases relating to claims by widows, or adult children, or grandchildren) cannot be elevated to inflexible rules and are always subject to the consideration of the particular circumstances of each case, including the size of the estate, any competing claims, the applicant’s conduct and the applicant’s relationship with the deceased (see White JA at [37]; Brereton JA at [106]).

169. There is, and should be, no predisposition for or against the making of orders for provision for adult children (just as there is, and should be, no predisposition for or against the making of orders for the deceased’s spouse). To approach the matter with such a predisposition would, if nothing else, be inconsistent with the observations of the Court of Appeal (in Steinmetz v Shannon and elsewhere) and inconsistent with the recognition in numerous cases that, in the circumstances of the particular case there at hand, there had been inadequate provision for an adult child (and the making of orders for provision out of the estate for an adult child in the particular circumstances of that case) (see, for example, Stern v Sekers; Sekers v Sekers [2010] NSWSC 59).

170. Each case must be determined on its merits, whether the applicant for provision be an adult child, surviving spouse, or other dependant; I do not read the observations of the Court of Appeal in Sgro v Thomson as suggesting otherwise (and, as I say, the Court of Appeal in Steinmetz v Shannon makes this clear). As Lindsay J said in Verzar v Verzar [2012] NSWSC 1380 (at [131]), in a passage that has been endorsed by Hallen J in Sreckovic v Sreckovic [2018] NSWSC 1597 (Sreckovic) (at [154]):

“Whatever guidance one might draw from analogous cases all analogies, and any guidelines drawn from a pattern of similar cases, must yield to the text of the legislation, the duty of the Court to apply that text to the particular circumstances, and the totality of material circumstances, of each case. Preconceptions and predispositions, comforting though they may be, can be the source of inadequate considerations of the jurisdiction to be exercised: Bladwell v Davis [2004] NSWCA 170 at [12] and [18]-[19].”

In allowing provision for Nick, the Court accepted, at para 12, that:

  • Barbara would eventually have to leave the property;
  • Barbara’s significant sentimental attachment to the house, whilst the Court gave “anxious attention” does not outweigh Nick’s strong case for provision;
  • Adequate provision could be made for Nick which would still leave Barbara an income in excess of her needs and enough money to buy accomodation in Canberra.

In his evidence to the Court, Nick noted that he did not want his mother forced out of her home and wanted to respect his father’s dying wish. However, he felt he had no other choice but to bring the proceedings (para 17).

In a decision that was clearly difficult to reach, the Court noted that Nick and his father enjoyed a good relationship and inferred, from Nick’s fathers past financial assistance to Nick over the years, that if Nick’s troubles had arisen before his father passed, his father would have taken steps to assist him. At paragraph, 69, the Court said:

Based on the unchallenged amounts set out in paragraph [8] above, I accept that the amount of $600,000 to provide Nick with the resources to acquire a home and transport and to have a fund for contingencies is the appropriate provision which the Court ought to make for his maintenance and, such as it might be, advancement in life. When weighing their competing claims, I am fortified in that outcome because the evidence supports the fact that Barbara, if such an amount is provided to Nick, will still have adequate funds (even if the Property must be sold) both to continue to receive income not significantly different to that which she currently receives and to acquire a suitable home.

Further, at paragraph 73, the Court said:

I take into account Barbara’s entirely understandable wish to have somewhere that is perhaps not enclosed completely by suburbia and which has a garden. I accept that it will be different, both in size and quality, from the Property which she loves.

Nevertheless, the evidence permits me to conclude that such a new property would be available to her if she has $700,000 to spend, especially if on the outskirts of Canberra (and hence unlikely to be more expense than a similar property in the suburbs), which might provide more of a country feel.

In reaching this conclusion, I accept [Nick’s counsels] sumission that it is inevitible that at some point Barbara will have to leave the Property. It is unncessary to speculate, and that is all it would be, what the reasons for that might be and when that might occur, but such departure is inevitable. In my respectful opinion, and giving full weight to Barbara’s desire to remain in the Property, in circumstances where she will eventually have to leave whereas the Property can be made immediately available to assist Nick, it is the latter purpose that should be preferred. When that is combined with teh considerations I have set out in paragraph [70] above to hte effect that Barbara’s income would be minimally altered if the Property must be sold, in my respectful view all of that supports the conclusion that the appropriate exercise of the Court’s discretion ist o make provision in the figure of $600,000 proposed on behalf of Nick.

Finally, weighing the needs of both competing claims, the Court said:

As I have already said, I have given anxious consideration to the importance of not interfering with Barbara’s reasonable expectations in relation to the Property. I have set out why this is a case where, even if great weight is given to her expectations and desires, they do not outweigh Nick’s need for assistance.

Paragraph 80.

The parties also noted that the central issue to determine was whether Nick had demonstrated “special circumstances” to permit the claim to be allowed out of time.

The Court referred to the principles enunciated in Underwood v Gaudron [2014] NSWSC 1055 as regards “special circumstances” (as required in out-of-time applications in NSW) and noted that whilst most applications of this nature were brought about in situations where the plaintiff had contributed to to the acquisition of estate assets, the Court found that the strength of Nick’s case was enough to constitute “special circumstances” for this purpose.

The Court ordered provision for Nick in the amount of $600,000 to be paid from the notional estate.

You can read the case here.

Update 20 February 2020: this matter was appealed and the appeal was dismissed with costs. You can read my post on the appeal here.




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