Which case won?

The case for the estate
  • It is true that the deceased did not provide adequately for his son, but the extent of provision should be limited to no more than $450,000 in total.
  • The son is exaggerating his needs in his claim for a large sum to buy a house. He currently lives in a two-bedroom apartment and a similar dwelling could be bought for a much more modest sum.
  • The deceased was very clear in his desire to leave most of his money to the charities which were dear to him. Testamentary freedom (ie the freedom to dispose of your money and assets however you want after your death) should be upheld in large part.
  • The $1.1 million the son is asking for is 22 times the value of the provision that his father had determined to leave him in his will.
  • To agree to such a substantial alteration would interfere unjustifiably with the father’s testamentary freedom.
  • Having regard to all relevant factors, adequate provision for the son is no more than $450,000 in total, which would be enough to buy him a small home and have a financial buffer for the future.
The case for the son
  • My father’s estate is a large one, I am the only son and a parent has a moral obligation to provide for a child.
  • There are no competing beneficiaries to whom my father had a moral obligation (ie there is no spouse or other children).
  • Charities are not beneficiaries that would ordinarily be expected to receive substantial provision from a deceased person in circumstances where there is a surviving child or children.
  • Any “estrangement” between me and my father was due to his actions over the years, rather than mine. I was only a small child when he walked out of the relationship with my mother and moved to another country.
  • I cannot work in the future due to my age and ill health, but I need a home to live in and a capital sum of money to live on.
  • If I receive greater provision from my father’s estate, taxpayers may not need to provide for me through Newstart payments.
  • I accept that some of the estate should go to the charities specified by my father, but the court should find that $450,000 is not adequate provision for my future needs.

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 a49%
case b51%

Expert commentary on the court's decision

“This case underscores the importance for willmakers of properly assessing the moral obligation owed to family, especially when there are no competing dependents.”
Supreme Court decides son should receive $700,000 from father’s estate

In the case of Stejskal v Hely & Ors [2019] NSWSC 1417, the Supreme Court of NSW agreed that the father, Dr Jan Stejskal, owed his son, Mr Tomas Stejskal, a moral duty to give him a sufficient sum to buy his own home, together with a sum for contingencies, which exceeded $450,000. 

In its decision, the court ordered that Tomas should receive additional provision of $650,000in addition to the $50,000 he was bequeathed under his father’will.  

In making this order, the court took the position, on evidence, that Tomas could purchase suitable accommodation for $350,000. The court held that the provision of a total sum of $700,000 to Tomas still left a large sum to each of the two charitiesalbeit being approximately $500,000, rather than $900,000 each.

Reasons why greater provision made for the son

While it is generally accepted by wills and estates lawyers that the days of any child receiving greater provision from a will are over, this case shows that where there are no competing beneficiariessuch as a dependent spouse or another child, then the court is open to increasing provision. 

In NSW a claim for a family provision order must be commenced within 12 months after a person’s death. Tomas brought the case within time. 

The court appreciated the fact that the estate accepted at an early stage that further provision should be made for Tomas, rather than arguing that adequate provision had already been made for him. 

Son morally blameless for estrangement from father

In some cases where the question of estrangement between parent and child is raised, it is the child who has caused the estrangement; this detrimentally affects their claim.  

However, in this case it was accepted by the court that the son was morally blameless for the poor and difficult relationship he had with his father. As such, the court did not consider the matter of estrangement as a factor to be considered. 

Lessening the burden on the public purse

It was argued by the lawyers for Tomas that this was a case where there was plenty in the estate to make proper provision for him and also that it was a matter of public interest to do so, because it might remove the burden of supporting him from the public purse, as he would not need ongoing Newstart payments if he received significant provision from his father’s estate.

Lawyers for Tomas referred in their submissions to another case, Evans v Levy [2011] NSWCA 125, where it was argued that the law has a public policy purpose:

…it is not appropriate that where there is wealth in an estate it should be directed away from the less fortunate and successful of the eligible persons so as to enhance their claims to social benefits and maximise the resources of others; the Court should not disregard the interests of the public in public funds…

The judge stated that while he considered this argument, it played no part in his reasoning in the case, because Tomas Stejskal did not present any evidence concerning what his entitlement to a pension would be (if any) if he received the amount that he was seeking from his father’s estate.

General obligations of a parent to an adult child

With respect to the general obligations a parent owes to an adult child, the court referred to the case of Taylor v Farrugia [2009] NSWSC 801, where the judge contrasted what the community expects parents to do for their children while they are children, with the obligations of parents towards those children when they become adults. 

For the former, the community expects parents to “raise and educate their children to the very best of their ability”, to “assist them with a tertiary education” and where they have the financial means, to “provide them with a start in life – such as a deposit on a home”. 

Nonetheless, as the judge in Taylor v Farrugia noted, if an adult child falls on hard times and where there are assets available: 

…the community may expect parents to provide a buffer against contingencies; and where a child has been unable to accumulate superannuation or make other provision for their retirement, something to assist in retirement where otherwise they would be left destitute. 

The judge in Stejskal v Hely had no doubt that Dr Stejskal had a “moral duty” to provide for his son’s accommodation, expenses and some contingency for the remaining 22 years that he was expected to live. 

The factors taken into account in reaching this conclusion included the son’s age, his limited future prospects and his lack of assets. Another important consideration was the substantial size of the estate.

Why did the court grant the son less than he asked for?

Lawyers for Tomas had argued that he needed between $550,000 and $650,000 to buy a house, as well as a lump sum of $500,000 to cover necessary expenses and provide a buffer for contingencies.

The necessary expenses listed by Tomas included a newer vehicle, a newer boat, new furniture, a holiday cruise and a trip to the Czech Republic to visit his elderly mother. The judge described many of these expenses to be “wants and not needs” in pruning the requested $500,000 sum to $350,000.

Court allocates funds for a modest home, not a lavish one

The court found that the $550,000-$650,000 requested by Tomas to buy a suitable house also overstated his needs, as the sample house prices he had compiled for the court were for “grandiose” dwellings of three, four or five bedrooms, with a number of these dwellings being on the waterfront at Bribie Island. 

Lawyers for the estate argued that Tomas had lived happily in a two bedroom apartment for nearly 20 years and had not sought to change those arrangements, so it would be appropriate for him to receive a sum equivalent to the cost of a two-bedroom apartment in the locality he had specified. 

The court agreed with this argument and allocated $350,000 to Tomas for the purchase of a home, taking the total sum he was to receive from the estate to $700,000, including the $50,000 he had already received. 

Court strikes balance between son’s needs and testamentary wishes of deceased

This arrangement left just over $500,000 for each of the charities, the Royal Flying Doctor Service and St Vincent’s Clinic Foundation.  

The judge stated that this arrangement gave “the appropriate degree of respect to Dr Stejskal’s express testamentary wish to leave significant benefactions to the Charities”. 

The court had regard to the father’s right to testamentary freedom, but held that the alternative arrangements which it had ordered gave effect to his moral obligation to his only son, while still providing for the charities which were close to his heart. 

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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