Olsen v Olsen [2019] NSWSC 217 (15 March 2019)

BACKGROUND

The plaintiff, a 61 years old son of the testator, brought a Family Provision claim for $250,000 against his father’s $265,000 estate. The testator and the plaintiff’s mother separated when the plaintiff was 9 months old. The testator remarried and had 3 children with his second wife. At the end of his life, the testator left the whole of his estate to his wife and 3 children of the second marriage, leaving nothing to the plaintiff.

For all intents and purposes of this article, New South Wales law is similar to that of Queensland.

CLAIMS BY ADULT CHILDREN: THE COURT’S APPROACH

The Court stated that an adult son is able to ‘maintain and support’ himself, and some special need or some special claim must be shown to justify intervention with the wishes of the testator by the Court, which is different in case of a widow or an infant, who have a valid claim to be maintained and supported.

ADEQUATE and PROPER

The court’s task in these cases is not to decide what is fair but to apply the statutory formula, while recognising  to the testator’s freedom to dispose his assets as he wishes. For court to make family provision order, it must be satisfied that ‘adequate provision for the proper maintenance, education or advancement in life’ of the claimant has not been made by the will of the deceased person. The plaintiff did not explain why the sum of $250,000 was necessary for his ‘proper maintenance’ or ‘proper advancement in life’.

SURROUNDING CIRCUMSTANCES

In reality, the circumstances of the plaintiff are more fortunate than those of the testator’s widow and their 3 children. The widow is 82 years of age and is likely to require an expensive full-time care in near future. The oldest of her three children had a ‘Category IV HIV’ infection’ and lived alone in 1-bedroom apartment. The widow’s daughter was on Centrelink pension, took anti-depressants and had a son with some serious medical issues. The youngest son was unemployed and unlikely to join workforce.

The plaintiff, on the other hand, was a solicitor and owns his private practice. His assets included real estate. The court concluded that the plaintiff was well-advised and that he had a level of financial sophistication that his half-siblings did not.

DECISION

The court decided that the circumstances did not justify the conclusion that the testator’s failure to make provision for the plaintiff should be disturbed. It was held that the testator was reasonably entitled to make no provision for the plaintiff who, despite adversity in his early years, has made more of his life than his other three children.

COSTS

The Court also discussed that on the plaintiff’s side there seems to have been no regard to the principle of proportionality as to costs. The hearing took one day, the case was not complex and did not justify a senior counsel. The plaintiff’s costs reached $178,050.

Both parties, their solicitors and counsels have a statutory duty to facilitate fast and efficient resolution of matters, which was in the Court’s view, ignored by the plaintiff and his lawyers.

CONCLUSION

To some, this case has achieved nothing except unnecessary cost and unwanted misery and stress. The Court noted that there have been numerous decisions in recent years dismissing claims by adult children and most of these cases were conducted on a speculative basis which unnecessarily fuelled the expectations of such claimants.

Careful case appraisal should be done before commencing such proceedings.

This article contains general information, not personal advice.