The plaintiff, Nicholas Cowap, sued out of time for provision from the estate of his late adoptive father. The deceased left his estate to the defendant – his 90-year-old mother. Nick, 64 years old, was the child of Barbara’s first marriage.
The case
The deceased died 11 December 2015. By the terms of his will made on 10 August 2012, he left his entire estate to Barbara, his wife of 57 years. However, the deceased’s assets (including the family home and property where they had lived since 1987) were held with Barbara as joint tenants. They did not fall into his estate and she succeeded to them by survivorship.
At the date of the deceased’s death, Nick was in good health. However, six months later, Nick suffered two serious heart attacks that left him in a wheelchair and with significant disabilities. Nick had no assets. His only income was his disability pension and benefits from his NDIS scheme.
Nick filed his summons on 15 December 2017, just over one year out of time. The court found Nick to be an eligible person under the Successions Act 2006. It was decided that if the court ordered provision for Nick, it would have to designate notional estate from the assets – which the deceased had held with Barbara as joint tenant, including:
- The family home valued at $1.35 million
- An interest in a share portfolio valued at $100,000
- Miscellaneous cash worth approximately $17,500
- Nick sought a provision of $600,000, which Barbara opposed.
The proceedings
The proceedings were conducted on the basis that the property would have to be sold to provide for Nick, and Barbara did not want to leave. On the other hand, Nick’s needs were real and pressing.
Decided in August 2019, the court was satisfied that Nick was entitled to the provisions he sought. He had demonstrated:
- Sufficient cause for an extension of time to be ordered
- The will did not make adequate provision for him
- An amount of $600,000 was adequate provision
- It was appropriate to designate notional estate
- The court’s reasons for this overall conclusion were summarised as:
The judge accepted that Barbara will eventually have to leave the property, and her sentimental attachment to said property did not outweigh Nick’s case for provision. Adequate provision could be made for Nick by the designation of the notional estate, which still left Barbara an income in excess of her expenditure and sufficient funds to purchase another house. The court concluded that the circumstances of the case, including Nick’s need for assistance and Barbara’s age, warranted the provision.
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