Unsuccessful family provision applicant’s costs paid by estate

Revell v Revell [2016] NSWSC 947

https://jade.io/article/483665

A 60 year old son’s family provision application against his father’s $10 million dollar estate has been dismissed by the Supreme Court of NSW. The judge described the difference between the son’s and his late father’s life in his opening remarks:

The father’s story is one of survival, hardship and determination. The son’s life, on the other hand, seems like a modern urban fiasco – for which no one else is to blame and certainly not his father.

The basis of the claim brought by the son was that the $1.5 million legacy he received from the estate did not make adequate provision for him. Importantly, the son’s sister also received the same amount. The balance of the estate, about $7 million, was left to the late father’s wife. The deceased had been married to his third wife for 22 years. She was the son’s step-mother.

The evidence heard by the Court included that the father had been generous to his son during his lifetime. The personal relationships and children of the son were also examined in some detail. This was necessary as the son had been engaged in family law proceedings and any sum he may have received from the estate in addition to the $1.5 million legacy were subject to conditions in the other proceedings.

As a result of certain health complaints and the breakup of his marriage the son was not working at the time of the application and he had limited assets available to him. Despite this, evidence was shown to the Court that using the $1.5 million legacy due to him, a unit in Sydney could be purchased to secure his accommodation with a remaining fund to meet his maintenance needs.

The judge considered how the father viewed his son and made some observations, including:

Nor is it difficult to understand why Tibby’s financial generosity toward the plaintiff diminished or why family Shabbat dinners with Tibby and Ziggy became less regular. The ties that bind began to loosen – understandably, naturally and inexorably. There comes a time when the problems of the son cease to be those of the father. Tibby was a positive and exuberant personality while his son was more naturally negative, and for that reason wearing, and it would seem, demanding. Tibby described his son to his close friends with sadness. He said he made him angry; that he is always in financial trouble; that he is a parasite; that he doesn’t do anything with his life; that he is useless; that he doesn’t like hard work; and that he only wants money. It was not a subject that he enjoyed discussing. One friend said that ‘whenever Tibby spoke about Gary, he focused on his hurt and his lack of joy’.

Community standards, the freedom of people to make their Wills as they wish and the adequacy of the provision already made for the son in the Will were also reviewed by the judge. It was determined that the legacy of $1.5 million was adequate in the circumstances and that therefore the application should be dismissed.

Ordinarily, if an applicant is unsuccessful in their application they will be liable to pay their own legal costs as well as a significant portion of the estate’s costs. In these circumstances, the judge determined that the effect of making an adverse costs order would be detrimental to the son. It was ordered that both the son’s and the estate’s legal costs be paid from the estate.

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