Family Provision Case

Our client Barbara was in a de facto relationship with James in the 1970’s. Whilst the relationship was short, they had a child together who needed the support, financial and otherwise of both parents throughout her childhood years. Unfortunately, James was a gambler and a drinker and really wasn’t ready for the responsibility of a child. The relationship ended when James wouldn’t commit to Barbara or their daughter Karen in any way. Karen was then only 12 months old.

James paid nothing for Karen’s support and didn’t even see his daughter until she was well into her 20’s, despite Barbara’s efforts to ensure there was a relationship. There was no property settlement between Barbara and James as they had no property to speak of. Barbara worked two jobs, and with the support of her parents, cared for Karen without any financial support from James. She later married and her husband became the only father Karen had ever really known.

When Karen planned to marry, James wanted to be involved but offered nothing to the costs of the wedding. He demanded that he walk Karen down the aisle. After all the years, and after the rejection of his responsibilities for so long, Barbara could not agree. She invited James to the wedding but could not agree to him walking Karen down the aisle. James refused to come to the wedding.

Many years later, when James died, he had a substantial estate which he left entirely to a friend. He made no provision for his daughter nor for Barbara, despite the fact that he had never paid a cent towards Karen’s upbringing.

We acted for Barbara in a family provision claim against James’s estate and succeeded in obtaining judgment in her favour. Karen was represented by another firm of solicitors. James should have recognised both Barbara as one of the natural objects of testamentary recognition given that there was never any property settlement between them and she had cared for their daughter in every way throughout the whole of her life, emotionally and financially.

A former de facto or de jure spouse does have standing to bring a claim for provision under the Succession Act 2006. However, he or she must show what is known as ‘factors warranting’ in making the application. Put simply this means that he or she must show that there was something more that gives rise to a moral obligation on the part of the deceased to provide for them as former spouse in his will.

The entitlement was examined recently in the NSW Court of Appeal decision of Lodin v Lodin [2017] NSWCA 327. In that case the deceased had left his entire estate to the daughter of the marriage. The parties had been divorced for many years and the deceased had always met his financial obligations towards his daughter, including paying expensive private school fees. The former spouse brought family provision proceedings and was successful at first instance. On appeal, the Court overturned the decision finding that the deceased’s moral obligation had been terminated when the settlement took place. In addition, there was nothing which had occurred since the separation which enlivened the moral responsibility. The deceased had been supportive of his daughter’s financial needs throughout her life and left his estate to her. Effectively, the Court of Appeal found that he owed his ex-wife nothing.

Our case was very different. Our client was worthy of consideration in the testamentary decisions of the deceased, given her substantial efforts to support their child over many years, the fact that no support was given over the entirety of their child’s life by him and the substantial sacrifices made by her.

If you have been left out of a Will or inadequately provided for, call us today to speak to our friendly team.