Family provision is not social welfare

On: April 19, 2019

Kohari v NSW Trustee & Guardian [2017] NSWSC 1080

This case provides another tragic example of the complexity of family relationships – particularly the relationship between a parent and a child.  The claimant (Robert) alleged he was the deceased’s son despite the deceased maintaining, throughout his lifetime, that the claimant was the product of his wife’s extra-marital affair.  The short point was that he wasn’t.  Robert proved he was the deceased’s son and, despite an entire life of estrangement, successfully claimed provision from the deceased’s estate.  This case highlights how differently Family Provision Act claims are dealt with in New South Wales as opposed to here in Western Australia.  Those differences will be highlighted below.

The Facts

Given the deceased’s view of the world, Robert grew up fatherless.  He was expressly excluded from his will and, as a result, his grandparents’ will too.  The exclusion from his grandparents’ wills caused him a loss of around $90,000.

The deceased’s first son, Joseph, was also excluded from the will.  This was despite the testator making his own claim against his mother’s will (which had gifted everything to her grandchildren) with the effect of substantially depleting the benefit received by Joseph.[

The Decision

The Court was highly critical of the deceased. His selfishness towards his children compelled it to disregard his testamentary wishes and implement a distribution guided by community expectations.[

When considering the appropriate level of provision, the Court was also guided by Robert’s own actions throughout his lifetime.  Although his father’s rejection was condemned, the Court considered that Robert had done little to help himself.  Despite being able-bodied and only 39 years of age, he had not held employment since his early twenties.  He failed to recover the cost of his gastric banding surgery as he led no evidence that financial constraints had prevented him trying to overcome his morbid obesity (and associated conditions) in the past.[ Robert’s wife also lived on welfare, their four children each suffering behavioural and medical difficulties.

The Court refused to use the Act as a ‘supplementary system of social welfare’[ to support Robert, as he had failed to take responsibility for his own lifestyle.  It chose to award him only $100,000 from a $1 million estate.  This was largely calculated by reference to the wrongful exclusion from his grandparents’ wills.

DNA played a role in this case.  It was a court-compelled paternity test that confirmed Robert’s birthright.  Unless all parties consent, such a thing is not possible here in Western Australia.  Our Supreme Court refuses to impose DNA testing against a person’s will, instead noting that it is for the claimant to prove their case and they may be able to do so without DNA evidence.

In Western Australia, whenever paternity is in issue it is necessary for the claimant to prove, firstly, actual paternity and, secondly, that such paternity was admitted by or established against the deceased during their lifetime.  If Robert’s claim was brought in Western Australia, much weight would have been placed on the fact that he was born in wedlock, suggesting paternity was “established against” the deceased.

Despite the above differences, the Supreme Courts of New South Wales and Western Australia treat estrangement in a similar way.  Just because the deceased was estranged from his child does not mean he is absolved of the requirement for adequate provision.  If there is good reason for the claimant’s estrangement (in this case it was the fact that the father wanted nothing to do with the child) there will be no bar to a claim.

For advice on making a family provision claim, contact our estates specialist Elise Croft.