Family Provision Claims can be complex and unfamiliar, leading to misconceptions on whether an adult child can obtain a share from their parents’ estate when they have been left out of a will.
In the State of NSW, it is possible for an adult child to apply to the Court and seek an alteration in the distribution of their parent’s estate if it can be established that such an order would provide the child with “the proper maintenance, education, or advancement in life.” The Supreme Court of NSW recently tested this principle and awarded a son a proportion of his father’s estate even though his father left him out of the will completely.
In the matter of Xiang by his tutor Cao v Tong [2021] NSWSC 44, Xiang (the Plaintiff) was under the age of 18 years when his biological father/the deceased (“Damon”) passed away. Damon had prepared a will before his passing that left his son Xiang out of the will completely. A family provision application was subsequently made by Xiang.
In determining the application and whether it had the power to alter the will, the Court had to consider two important questions:
- Is Xiang an “eligible person”?
- Can the Court make a family provision order in the circumstances?
Initially, the paternity of Xiang was disputed because his birth certificate did not disclose the name of his father. However, this issue was later resolved as a paternity test did in fact prove that the deceased was Xiang’s biological father.
Once the Court was satisfied that Xiang was in fact and an eligible person, the Court then had to consider whether it had the power to step in and alter the distribution of the estate under will so that Xiang could receive a benefit from the estate.
To determine whether the Court has the power to make a family provision order, the following was considered:
- Damon’s total assets and liabilities (including any assets he held outside of NSW and Australia).
- The nature and duration of the relationship between Xiang and Damon, including the nature and extent of any obligations or responsibilities owed by Damon to Xiang. Xiang’s parents were never married. For most of his childhood he did not live with his father, however Damon did pay child support for Xiang until at least 2009.
- The Court also considered Xiang’s age, intellectual capacity, financial resources/earning capacity and financial needs. Xiang was diagnosed with Asperger’s Disorder which is one of the forms of Autistic Spectrum Disorder and was reliant on government benefits.
In his decision, His Honour Justice Hallen J accepted that there were grounds for the Court to step in and make an Order in Xiang’s favour. His Honour stated at paragraph [318] that:
To justify an order for provision under the Act, the Court, relevantly, must be satisfied that the deceased has not made “adequate provision for the proper maintenance … or advancement in life of the person in whose favour the order is to be made …”: s 59(1)(c). If that is established, the Court is empowered to order such provision out of the estate as the Court “thinks ought to be made” for the identified purposes: s 59(2).“
His Honour Justice Hallen J concluded that the Court was satisfied that adequate provision for the proper maintenance, education and advancement in life had not been made under the will and ordered that the benefit of $175,000 be paid to Xiang from his father’s estate.
His Honour Hallen J stated at paragraph [423] that:
No provision in the deceased’s Will was made for the Plaintiff, which means that this is a case where a child of the deceased, who cannot be regarded as being able bodied and self-sufficient, has been excluded, completely, from participation in the estate of one of his parents. The jurisdiction of the Court is designed to provide for an eligible person, including an adult child, where inadequate provision is made for her, or his, maintenance, education or advancement in life: Permanent Trustee Co Ltd v Fraser (1995) 36 NSWLR 24 at 29 (Kirby P).“
At paragraph [434] His Honour continued and said that:
The general community expectation, by which I mean the Court’s perception of what fair and reasonable members of the community would expect of a wise and just testator, knowing all the circumstances, would expect him to have made some provision for the Plaintiff.“
This recent decision reinforces the principle that a parent still has a moral obligation to their child when they die (even if that child is an adult). If a parent does not make provision for their child in their will (or if the court finds that the benefit that the parent has given their child is not enough), then the Court has the power to step in and give the child more from the estate.
If you have been left out of your parent’s will, then you should call our experienced team of Will Dispute Lawyers on (02) 9299 0112 to discuss your matter and see whether you have grounds to contest your parent’s will.