NSW Supreme Court assesses health of plaintiff in family provision claim

Published 23 Dec 2013

The New South Wales Supreme Court recently made a decision in a case in which it had to consider several factors, including the health of a plaintiff.

The family provision claim was made after John Joseph Dunn died on December 23, 2011, at the age of 93. The man had married twice in his life, but the only living children of both marriages were Jacqueline, Gregory, plaintiff Joseph and defendant Paul.

The will outlined that the entire estate would be left to Paul, who obtained probate on May 17, 2012. This included the testator’s home, which was valued at about $270,000. John filed the family provision claim to assert he deserved a piece of the estate.

In considering the case, the court looked into Joseph’s health, and determined he was illiterate and had been unemployed since 1997. He received a disability income and made some money by selling livestock. His wife of 29 years, Jennelle, also received a pension from the government.

Because establishing a family connection is so imperative in these cases, the court looked into his relationship with the deceased while he was living, and determined that there was “no doubt that there was relatively little contact between the plaintiff and the testator after 1989 when the plaintiff left the family home.”

The plaintiff’s argument

However, Joseph argued that the row that came up in the family occurred before he moved out of the family’s house, and was because of his marriage to Jennelle, of whom Joseph’s father didn’t approve because she was not a Catholic.

The court took many considerations while deciding the outcome of the trial. Justice Peter Young stated that adequate provision – one of the largest factors in many family provision cases – was clearly not made for Joseph.

With this established, Mr Young said it was up to him to decide an appropriate amount for Joseph to receive given his circumstances.

“If one sits in the testator’s armchair and says, ‘I have Paul who has been my carer for many years so he should get much more than the others, I have the plaintiff who has health problems, is illiterate and is living in poor conditions, he probably should get a double portion and I have three other children so that I might split my estate into ninths and give Joseph two-ninths,” Mr Young said.

While this would lead to a figure of about 43,500, the judge ultimately awarded $60,000 of the estate to the plaintiff.

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