Which case won?

The case for the estate
  • The court should honour the intention of the deceased’s will, rather than making provision for a person whom the deceased clearly did not want in his life.
  • It was only bare paternity that existed between the deceased and the plaintiff, and the law states that this is not enough to justify the grant of a family provision order.
  • In any event, the deceased provided sufficiently for the plaintiff by paying $300,000 in child support until the plaintiff turned eighteen.
  • As a healthy and gainfully employed adult, the plaintiff can and should now make his own way in life. He has a good job as an IT consultant and earns a salary sufficient to support himself.
The case for the son
  • There is more than bare paternity between my father and me. I tried hard to get to know my father. I often read about him and even watched a television documentary about him to learn more about him. I also attempted to contact him several times but was rebuffed.
  • My father’s actions were the only reason for our estrangement. Even after a DNA test confirmed that he was my biological father, he chose to exclude me from his life. He even tried to place the responsibility for our lack of a relationship on me, by saying that he would only see me if I got a second DNA test done.
  • Although my father paid child support, it was the minimum amount required by law and I did not have anything like the material support I should have had, given his affluence.
  • My salary is only $91,324, making it difficult for me to pursue my aspirations of settling down with my fiancée and starting a family. My father should have provided for me more generously during his life and he should provide for me after his death.

So, which case won?

Cast your judgment below to find out
Case A Case B

Case B won. You were right!

How people voted
case a37%
case b63%

Expert commentary on the court's decision

Tierah Faulder
Tierah FaulderLawyer
“This case underscores the authority of the Supreme Court of NSW to consider non-estate assets as available for distribution in family provision claims. It also highlights the importance for the parent of an illegitimate child to think twice before leaving that child out of their will.”
Supreme Court grants application for family provision order

In the case of Estate Hemmes; Cameron v Mead [2018] NSWSC 85, the Supreme Court of NSW granted the application by the plaintiff, Mr Edward Leslie Cameron, for a family provision order.

The court ordered that Mr Cameron be awarded the sum of $1.75 million from the notional estate of his biological father, Mr John Hemmes.

Deceased’s non-estate property designated as a notional estate

After Mr Hemmes transferred money to his legitimate children prior to his death, and taking into account the estate’s liabilities, the net estate had a negative value of $298,005.

Because the estate had a negative value, there was no money from which Mr Cameron could receive a family provision.

However, the court had the power to make an order designating Mr Hemmes’ non-estate assets as a notional estate, making those assets available to fund a family provision order.

When will a court designate non-estate property as a notional estate?

A typical example of the court designating non-estate property as a notional estate is where a will maker transfers a home to a child prior to death. This would reduce the size of the estate so that an excluded beneficiary, if they claim against the estate, would have very little to claim against. In this situation, the court can still consider the home as an asset for the purpose of making an order.

Another example is where a husband and wife own a home in joint names. Upon the death of one spouse, the home automatically passes to the other spouse, as happened in this case. However, the court can order that it forms part of the notional estate instead.

Similarly, a person’s failure to deal with their superannuation in such a way that it forms part of their estate can lead to a notional order being made.

In these proceedings, the court designated Mr Hemmes’ $4 million in superannuation as a notional estate from which a family provision order could be paid if Mr Cameron’s application were successful.

In Australia notional orders are only possible in the state of NSW. Therefore, the outcome of this case may have been different if Mr Hemmes’ assets had been held outside of NSW.

Court applies two-pronged approach to determining case

Under section 59 of the NSW Succession Act 2006, a person can apply for a family provision order if they are an “eligible person”. As Mr Hemmes’ biological child, Mr Cameron met this criterion.

In deciding whether to grant Mr Cameron’s application, the court applied what is commonly known as the two-pronged approach.

Under section 59(1)(c) of the Act, the first prong is whether “adequate provision for the proper maintenance, education or advancement in life” of Mr Cameron had been made by the will of Mr Hemmes.

If the answer to the above question is “no”, then under section 59(2) of the Act, the second prong for the court to consider was whether it should exercise its discretionary power to make provision out of the notional estate for Mr Cameron’s “maintenance, education or advancement in life”.

Court finds no provision made for plaintiff in deceased’s will

In considering the first prong, the court emphasised that although Mr Hemmes had made compulsory child support payments, he did not pay anything else to, or for the benefit of, Mr Cameron during his lifetime.

The court found that this was not a case in which the “bare fact of paternity” existed alone. Rather, Mr Hemmes made a conscious decision, aware of his parenthood, to have no contact with Mr Cameron, despite Mr Cameron’s ongoing attempts to ignite a relationship with him.

The estrangement was caused by Mr Hemmes, rather than Mr Cameron, and therefore any argument that the estrangement should nullify Mr Cameron’s claim was not accepted.

The court noted that Mr Cameron had to make his way in the world without any love, support, or encouragement from Mr Hemmes, despite his father being extremely wealthy and undoubtedly providing those benefits to his other two children.

The court concluded that “neither a person guided by wisdom and justice, nor a person guided by current community standards, could reasonably conclude” that Mr Hemmes had left Mr Cameron with adequate provision.

Court exercises its discretion to grant legacy out of notional estate

With respect to the second prong of the two-prong approach, the court ordered that Mr Cameron be granted a legacy of $1.75 million out of the notional estate.

In selecting that figure, the court took into account Mr Hemmes’ “moral duty” to make provision for Mr Cameron, the size of Mr Hemmes’ available notional estate, and Mr Cameron’s aspirations.

The court balanced these factors against Mr Hemmes’ entitlement to testamentary freedom, noting that while section 59 of the Act gives the court the power to make a family provision order, it does not empower the court to re-make the deceased’s will.

This case underscores the authority of the Supreme Court of NSW to consider non-estate assets as available for distribution in family provision claims. It also highlights the importance for the parent of an illegitimate child to think twice before leaving that child out of their will.

For more information about family provision claims, please see Family provision claims in NSW – spare us the details and curb your expectations.

NOTICE: This article is accurate as at the time of publication and does not constitute legal advice. Please see our legal notices page for more information. Information related to coronavirus can be outdated very quickly.

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