The Facts
Will leaves nothing to stepdaughter
A case heard in NSW involved a dispute over whether a man had made adequate provision for his stepdaughter in his will.
The man died in November 2017.
The gross value of his estate at the date of his death was about $205,000.
He and his first wife had two children together, who resided in the United Kingdom.
The man met his second wife in Australia in 1984, and they married in 1986.
They had no children together. However, the man’s second wife had one child, who became his stepdaughter.
The second wife died in 2015, leaving her entire estate to her husband, save for a silver belt which she left to her daughter.
In 2012, the man had made a will in which his stepdaughter was named as a substitute beneficiary in the event of her mother dying before him.
However, in 2016 he made a new will, in which he left nothing to his stepdaughter. Instead he left the whole of his estate to his biological children and grandchildren.
After payment of debts and funeral and testamentary expenses, each of his children was to receive 40 per cent of his estate, his granddaughter ten per cent, and his grandsons who were living at the date of his death the remaining ten per cent divided between them.
Stepdaughter sometimes resided with mother and stepfather
The stepdaughter lived with her mother and stepfather in the 1980s before going overseas in 1986 to study at university.
While she was studying, she visited her mother and stepfather at mid-semester break and over the Christmas holidays.
Between 2001 and 2011, she did not visit her mother and stepfather. Instead, the mother visited her daughter.
Then for a period of about three or four months in 2011, the stepdaughter moved back in with her mother and stepfather.
During this time there was conflict between the man and his stepdaughter, who called the police and told them her stepfather had “an undiagnosed mental health condition”. The police took no further action but did record a “long seated animosity” between the man and his stepdaughter.
The last time she saw her stepfather was in September 2015, after her mother’s death, when she attended his home to collect some belongings.
Stepdaughter seeks family provision order
After the man’s death, the stepdaughter commenced proceedings in the NSW Supreme Court, seeking that a family provision order be made on her behalf, to be paid to her out of her stepfather’s estate.
The man’s sister, who was the executor under his 2016 will, defended against these proceedings.
Expert commentary on the court's decision
Court dismisses stepdaughter’s application for family provision order
In Cooper v Atkin [2020] NSWSC 828, the NSW Supreme Court dismissed the application by the stepdaughter, Kristi Cooper, on the basis that she had not satisfied the court that adequate provision for her maintenance, education or advancement in life had not been made by the will of her stepfather, Terence Helgesen.
Stepdaughter was an eligible person
Under the NSW Succession Act 2006 (“the Act”), the court has discretion whether to grant a family provision order.
Before the court can do so, there are various criteria it must consider.
The first criterion is whether the person applying for the order is an “eligible person” under the Act.
The category of eligibility upon which Kristi relied was section 57(1)(e) of the Act, namely, that she was a person who was, at any particular time, wholly or partly dependent on the deceased, and who was, at that particular time, or at any other time, a member of the household of which the deceased person was a member.
Lynda Atkin, the sister of Mr Helgesen, who was the executor of his will and the defendant in these proceedings, accepted that Ms Cooper was an eligible person under this section of the Act.
Factors warranted the making of the stepdaughter’s application
If, like Ms Cooper, a person is found to be an eligible person under section 57(1)(e) of the Act, then that person must also establish that having regard to all the circumstances of the case, there are factors which warrant the making of the application.
The court accepted that there were such factors.
These factors included the contribution made by Ms Cooper’s mother towards building up the Mr Helgesen’s estate and the fact that Ms Cooper was one of the beneficiaries of his 2012 will.
Court must consider whether adequate provision was not made in will
If, as in this case, eligibility and factors warranting the making of the application are both established, then the court must determine whether adequate provision for the proper maintenance, education, or advancement in life of the person in whose favour the order is to be made has not been made by the will of the deceased.
In order to make this determination, the court stated that it was:
Stepdaughter fails to establish lack of adequate provision
The court noted that “A person may fail to satisfy the description of being ‘left without adequate provision’ even though no, or little, provision is made for her or him in the deceased’s Will”.
Having considered the required matters, the court concluded that Ms Cooper had failed to establish her case.
Although the court was satisfied that Ms Cooper had needs that couldn’t be met from her current resources, it noted that her financial difficulties were, in part, the result of her own choices.
With respect to the small size of the estate, the court pointed out that any provision made by the court in favour of Ms Cooper would necessarily have to be made at the expense of Mr Helgesen’s children and grandchildren – those he had chosen to inherit his estate.
The court also rejected Ms Cooper’s assertion that there was no animosity between her and her stepfather as being inconsistent with the evidence.
Finally, the court emphasised:
Stepdaughter unsuccessfully appeals ruling
Kristi appealed the ruling to the NSW Supreme Court of Appeal in Cooper v Atkin [2021] NSWCA 82.
The appeals court rejected her appeal and ordered her to pay the executor’s costs of the unsuccessful appeal.
Think twice before litigating over small estates
This case, described by the court as “ruinous, and recriminatory”, should give pause to anyone considering commencing family provision litigation over a modest estate.
As the court noted, over $109,000 in estimated costs was incurred by the parties, in an estate with a maximum gross value of about $205,000 at the date of death.
For the court, this demonstrated that the parties were not really concerned about what might be able to be achieved in the proceedings, and prompted the court to lament a similar lack of concern in many family provision cases fought over small estates.