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Family Provision – Court considers needs of a disabled child

Maria Oliveira by her tutor Ivo De Oliveira v John Antonio Oliveira [2023] NSWSC 1130

In this case, there was a dispute over the distribution of assets from the estate of the late, Luis Oliveira. The case was brought on behalf of Luis’ daughter, Maria, who is severely disabled and non-verbal, and the interests of her mother, Felicidade, who was also in poor health and residing in a nursing home.

Luis and Felicidade were married for more than 50 years and had seven children, one of whom was Maria. After Luis passed away, all of his estate was left to Felicidade under his will. Maria, Luis’ daughter, as a child was an eligible person to seek a provision from his estate under the Succession Act 2006 (NSW).

Maria’s brother, Ivo, who was her guardian appointed by the guardianship division of NCAT (New South Wales Civil and Administrative Tribunal) commenced the proceedings on her behalf Her financial matters were managed by the NSW Trustee and Guardian. On the other side, two of Maria’s other brothers, John and Luis, were administrators of the estate and Felicidade’s attorneys and guardians.

Maria’s claim was based on the argument that she should receive provision from the estate for possible future contingencies, even though her current needs are being met through the National Disability Insurance Scheme (NDIS) and a Commonwealth pension. Her legal representatives suggested a figure of $125,000 at trial reduced from an initial claim of $220,000.

The central issue in the case revolved around the concept of “contingencies,” which refers to possible future events that may require additional funds. The court typically allows for such contingencies when determining family provision claims, as it acknowledges that unforeseen events can occur in a person’s life.

However, the court found that Maria’s circumstances did not justify an allowance for contingencies. Her needs were being met through her NDIS package and pension, and there was no evidence to suggest that these resources would become inadequate in the future.

The court considered various hypothetical scenarios that might warrant an allowance for contingencies, such as medical emergencies or financial difficulties. I determined that none of these factors applied to Maria’s situation. She already had a significant sum of money managed by TAG, was set to inherit $20,000 from her mother’s will, and had assurances from her brothers that they would provide additional support if needed.

The court also noted that Felicidade was in a nursing home, and the available estate was relatively small, making it challenging to provide additional provisions for Maria.

The court also considered the issue of extending the time for Maria’s claim, as it had been filed more than two years after Luis’s death, which exceeded the usual 12-month limitation. Typically the court would have extended the time for filing of the claim given the specific circumstances of disability but given the lack of merit in Maria’s case, it was unnecessary.

Ultimately, the court dismissed Maria’s claim and ordered her to pay the estate’s costs of defending her claim. The court also determined that the costs should be paid on an indemnity basis, as the plaintiff had not accepted settlement offers made by the defendants which should have been in the circumstances. Additionally, the court raised the question of whether Ivo, acting as Maria’s tutor, should be responsible for the costs without recourse to Maria’s estate. That issue was to be addressed in further proceedings.

In summary, the court ruled against Maria’s claim for provision from her father’s estate based on contingencies, given that her current needs were being met, and there was no evidence to justify additional funding for possible future needs.

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