Which case won?

The case for the son
  • Even though my stepfather says he has no present intention of changing his will, he has admitted that this could change in the future, for example, if he remarries.
  • Given my financial position, which includes mortgages and credit card debts, my deceased mother had a moral obligation to give me something.
  • That obligation extends to providing me with a top-up to my superannuation fund, because my current salary is unlikely to change dramatically and it would otherwise be difficult for me to build a solid superannuation nest-egg when I reach retirement age.
  • It is inconsistent with community standards for a parent to make no provision out of their estate for an adult child where the estate is large enough ($1.5 million) to make such provision.
The case for the estate
  • The assets are jointly held and should pass to the stepfather pursuant to the law of survivorship.
  • The son will get an equal share of the joint estate when his stepfather dies. There is no evidence that the stepfather will change his will in the future.
  • The son, while eligible to bring this claim, has not proved that he has the requisite financial need to obtain the orders he seeks. He is young, employed, earns $70,000 per annum after tax, has no children and holds net assets with his spouse worth over $450,000. He will continue to add to his superannuation as he ages.
  • The fact that he currently has only modest superannuation savings of $60,000 is due to his own flawed investment strategy and his decision to persevere with a loss-making business venture.
  • It is inconsistent with community standards for a parent to make provision out of his or her estate for an adult child’s superannuation savings when they have an obligation to their spouse.

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 a43%
case b57%

Expert commentary on the court's decision

“The judges found that the son had failed to prove that his mother had not provided adequately for his ‘proper maintenance, education or advancement in life’.”
Son failed to demonstrate and quantify need to build up superannuation benefits

In the case Bates v Cooke [2015] NSWCA 278, the appeal by the son, Mr Bradley Bates, was dismissed. The court considered section 59 and section 60 of the Succession Act, which set out when a family provision order may be made over a deceased estate and the matters that are to be considered by the court.

The judges found that the son had failed to prove that his mother had not provided adequately for his “proper maintenance, education or advancement in life”.

The son’s entire case rested on his claimed need to build up his superannuation benefits. However, the evidence to demonstrate and quantify that need was described by the Court of Appeal as “scanty”.

Ultimately it was held that community standards would not have required his mother to make provision for him to build up his superannuation.

Son’s circumstances and stepfather’s intention to honour agreement with deceased

The features the primary judge took into account were the appellant’s age, his employment status, his good health, the absence of dependants, the manageable mortgage, the ability of his spouse to seek employment if she wished and their superannuation entitlements.

The primary judge also took into account that he was satisfied that the stepfather, Mr Robert Cooke, intended to honour the (unenforceable) agreement with the deceased – that is, his will – that their combined estate should ultimately pass to the five siblings equally.

Errors in calculation of projected growth of superannuation fund

The Court of Appeal also noted they would have dismissed the appeal on the basis that the son’s calculations regarding the need for further provision were flawed. The appeal judges identified at least six mistakes in the son’s calculations of the projected growth of his superannuation fund over the following 22 years.

This included the assumption of a very low interest rate being applied to the superannuation fund, an incorrect wage percentage for employer contributions and calculations based on after-tax, not pre-tax income.

It did not help the son’s case that all of the identified mistakes helped to understate the son’s likely financial position at retirement age. As one of the appeal judges noted: “It is difficult to reach any conclusion other than that each assumption was chosen so as to increase the apparent need to ‘top up’ the appellant’s superannuation.”

This alone would have been enough to dismiss his case at first instance due to the lack of need evidenced.

Mr Bates was ordered to pay the estate’s costs of the appeal, together with his own costs.

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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