Recently the Supreme Court handed down its decision in the matter of Bryan v Beveridge Bryan v Beveridge [2021] NSWSC 1406 (8 November 2021) which was an application by an adult daughter for interim provision out of her late father’s estate. The decision refines the circumstances in which a Court will award an interim payment (prior to the final hearing of the matter) where there is immediate need by the application for financial provision.
In the circumstances of this case the deceased had left his entire estate consisting of a home worth some $8M to $12M to his wife and nothing to his daughter. In addition to the estate there was some $50M held in a discretionary family trust controlled by the deceased’s wife.
Sadly, the deceased’s daughter was suffering from myeloma (blood cancer) and had an immediate need for treatment including expensive drugs to treat the cancer which were not on the Pharmaceutical Benefits Scheme.
The Court confirmed that it was necessary to consider:
- On the material available at the time of the application, the probable outcome of the proceedings at final hearing;
- What the applicant’s and the estate’s circumstances are likely to be at the time of the final hearing; and
- What it considers as a proper order that would give the eligible person only such a sum as would deal with their real needs pending the hearing and then usually only on terms that the monies could be recovered if the applicant were to be unsuccessful.
In this case given the extent of the estate and potential notional estate and the plaintiff’s circumstances, the Court was satisfied that the plaintiff would ultimately be successful in obtaining orders for family provision, and ordered the payment of most of the claim for treatment expenses as interim provision.
With a further twist, the deceased’s wife argued that she did not have sufficient liquid funds from the estate to make the payment. The Court was not convinced that the defendant could not raise the funds against the estate real property and ordered the funds be paid by staged tranches prior to 31 January 2022 in accordance with the plaintiff’s needs for staged treatment.
