From 2017, the number of matters filed in the Family Provision List in the Supreme Court of NSW has steadily decreased, which is somewhat surprising. Given the rise in blended families and the aging population, I expected that the number of claims filed would be trending upwards. I suspect that the reason for the decrease is that more lawyers are trying to resolve matters in a collaborative way, whereby, efforts are made to resolve disputes within a family prior to an application being filed in the Supreme Court.
The majority of applications for Family Provision Orders are resolved at mediation or at some other form of alternative dispute resolution, such as a Judicial Settlement Conference or Chambers Settlement Conference, resulting in a small percentage of cases proceeding to a Court hearing.
In New South Wales, there have been more and more cases involving step-children.
The categories of eligible people do not include a step-child in New South Wales (unlike in some other states, for example Queensland). A step-child in New South Wales would only be eligible to make a claim for provision from a deceased person’s estate if they can prove that:-
- they were wholly or partly dependent on the deceased and a member of the household of which the deceased was a member; or
- they were living in a close personal relationship at the time of the deceased’s death.
A step-child must also prove that there are factors warranting the making of their application (that is, they must demonstrate that they were a natural object of testamentary affection).
Most recently, the case of Mallitt v Gow [2022] NSWSC 1012 (28 July 2022) (before his Honour Hallen J) involved a claim by an alleged step-child. I say alleged because although the Plaintiff was said to be the deceased’s step-child and referred to as such in a prior Will, there was no evidence that the Plaintiff’s father and the deceased were married.
In this case, the estate had a gross value of $733,770. The major beneficiaries were the deceased’s son, Colin (the defendant) and his wife, Jacqui. Colin and Jacqui cared for the deceased in the last years of her life.
At the time of hearing, the Plaintiff (Wayne Mallitt) was 63 years old, he had limited assets comprising superannuation, a car and cash valued in total at under $200,000.
In this case, the Plaintiff established that he had lived with the deceased from the ages of 14 to 25 years old. Despite making comments that the Plaintiff’s evidence was exaggerated and not all the Plaintiff’s evidence was truthful, ultimately, the Court ordered that the Plaintiff should receive a lump sum of $80,000 out of the deceased’s estate. This amount would provide a capital sum which the Plaintiff could use as a buffer for contingencies in life.
If you have any questions about making an application for a Family Provision Order or a claim involving step-children, we can help you. Please contact our experienced team of lawyers on (02) 9101 7000.
