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Severely disabled daughter loses court bid for more provision from father’s estate


In a NSW Supreme Court case, a family provision claim was dismissed after the disabled adult daughter of the deceased failed to make a compelling case for additional funds. Attwood Marshall Lawyers Estate Litigation Partner Lucy McPherson and Litigation Senior Paralegal Amber Roebeck discuss the case and how it shows that no matter the sadness of the circumstances, the court will always apply objective legal principles to its assessment of whether an allowance is justified.

The Supreme Court of New South Wales recently ruled against a severely disabled woman who bought a family provision claim against her late father’s estate seeking further provision for her ongoing care and support. The woman required round-the-clock care, but despite this, the court concluded that she could not demonstrate a need for a contingency fund out of her deceased father’s estate.

The court’s judgment hinged on the fact that the daughter’s needs were already being met through government support. Specifically, the National Disability Insurance Scheme (NDIS) and pension entitlements were providing a safety net.

The judge also had to weigh the respective needs of the plaintiff – a 52-year-old non-verbal, severely disabled woman who lives in a supported share home – against the needs of the residuary beneficiary of the estate, her mother – an 82-year-old woman with Alzheimer’s Disease who is lives in a nursing home.

Through her tutor, the daughter tried to convince the court that she should receive an allowance for contingencies – citing the possibility of her NDIS funding suddenly becoming unavailable, the accommodation she lives in being flooded, or if a medical emergency were to occur.

However, the judge dismissed those concerns, putting into sharp focus the considerations the court must weigh up when balancing the emotional and financial aspects of such cases. Even in sad circumstances like this, where empathy might suggest the daughter deserves more support and financial security, the court must unwaveringly apply legal principles to its assessment.

Here, we look at the case in closer detail and list some key takeaways from the judge’s reasoning. 

The case: Maria Oliveira by her tutor Ivo De Oliveira v John Antonio Oliveira [2023] NSWSC 1130

Maria is 52 years old and suffers from severe down syndrome, autism, epilepsy, intellectual disabilities and alopecia. She is nonverbal and has lost sight in one eye. She resides in a supported shared home where she receives full-time care.

Maria lodged an out-of-time claim against her late father’s estate, seeking an award of provision.

Luis Oliveira died on 1 May 2019, leaving a Will dated 2 September 2015. The Will provided that his whole estate be given to his wife, Felicidade Oliveira. At the time of his death, his estate comprised $558,000. Felicidade and Luis had seven children throughout their more than 50-year marriage.

The court had to weigh the needs of Maria against the needs of her mother, Felicidade.

Felicidade is 82 years old, suffers from Alzheimer’s, and lives full-time in a nursing home. Calculations showed that if Felicidade survived another ten years, she would require about $480,000 to cover the costs of her care and housing fees. This substantiated her financial and personal need for the provision provided for her in Luis’ Will.

Maria’s daily expenses, on the other hand, are funded by the NDIS, which the Australian Government funds to cover costs associated with disability. On top of the NDIS afforded to Maria, she also receives a government pension and has approximately $26,000 in cash which is managed by the Trustee and Guardian.

The decision

Rather than “yield to natural human sympathy,” the judge said he had to apply the legal principles to the circumstances of the case. A big part of the decision was the size of Luis’ estate and Felicidade’s current circumstances and future needs.

After considering the case, Justice Kunc denied Maria’s claim, finding that Luis’ Will had not inadequately provided for her.

“All her current needs are being met and there is no reason to think that that will change,” the judge said. “There is certainly nothing in the evidence upon which I could find the slightest adverse risk concerning the continuation of her NDIS package or her Commonwealth pension and, in particular, whether either of those may in the future become inadequate or disappear.”

Justice Kunc said that Medicare should cover Maria’s treatment in a medical emergency. And other contingencies that the court would usually consider – such as sudden unemployment or the theft of valuable assets – do not apply in this case.

“No counsel, nor the bench, has been able to identify any even remotely likely event that could happen to Maria that would not be covered by her current or similar arrangements,” he said.

The judge also pointed out how Maria has approximately $26,000 being managed under the NSW Trustee and Guardian and will inherit $20,000 from Felicidade’s Will come the time Felicidade passes away.

Maria’s brothers told the court that they would provide for her if her NDIS funding fell short as long as Felicidade would not suffer financial hardship. The judge speculated that such a situation could only be resolved by the siblings’ consent or by an application to the Civil and Administrative Tribunal or the court.

Key takeaway

Even in extremely sad circumstances like the above case, where someone has the need for full-time care and ongoing support, the court will always take a pragmatic approach.

To win a family provision claim, the applicant must first show that they are eligible. In Maria’s case, her tutor also had to show why the claim was filed late.

The court then carries out a two-step assessment:

    • Whether the applicant has enough money to support themselves and live a comfortable life, as intended by the deceased’s Will or by the rules of intestacy (this is a matter of fact, but it also involves some judgment), and
    • If the applicant does not have enough money, the court decides how much money, if any, should be given to them from the estate (this is up to the court to decide).

    When making its decision, the court considers the applicant’s financial situation, the size of the estate, the relationship between the applicant and the deceased, other legitimate claims on the estate and whether the applicant did anything to deserve being disinherited from the estate, such as in cases where the applicant and the deceased were estranged, or if there is a history of abuse or violence.

    The court will first determine a claimant’s eligibility to make a claim for provision (or further provision). In New South Wales, an eligible person is defined as:

      • a husband or wife at the date of the deceased’s death;
      • a person living in a de facto relationship with the deceased at the date of his death;
      • a child or step-child of the deceased;
      • a person who was wholly or partly dependent on the deceased person;
      • a grandchild; or
      • a member of a household of which the deceased person was a member. 

      If a court finds the claimant is an eligible person the Court will consider whether the claimant has been left without adequate provision for his or her proper maintenance, education and advancement of life. The Court considers both their personal and financial circumstances such as:

      • age; 
      • mental health;
      • physical health;
      • living situation;
      • disabilities;
      • their financial resources such as assets and liabilities, savings and superannuation;
      • their employment status (and reasons affecting such);  
      • their dependents; and
      • their debts and expenses.

      Additional factors a court will consider are:

        • the size of the provision left to the claimant prior to the claim for provision or further provision (if any);
        • the nature and value of the deceased’s estate and notional estate;
        • the relationship between the deceased and the applicant;
        • the level of dependency of the claimant throughout the deceased’s life and at the death of the deceased;
        • the circumstances of the case (including the presence or absence of competing financial claims);the reasons (if any) for the testator to warrant making the provision they had;
        • both past and present circumstances warranting the making of the application.

        Attwood Marshall Lawyers – experts in Estate Litigation and Succession Law

        Disputes over Wills and estates can be highly complex to navigate. Finding the right lawyer who has a comprehensive understanding of Succession Law, and who can help you carry the burden and reduce conflict among family members as much as possible to achieve your desired result is crucial if you intend to contest a Will.

        Our dedicated estate litigation team practices exclusively in elder law and inheritance disputes, and we can guide you through this process with the utmost care.

        For specialist advice related to estate disputes or contesting Wills, please reach out to our Estate Litigation Department Manager, Amanda Heather, on her direct line 07 5506 8245, email or free call 1800 621 071 to make an appointment with one of our experienced estate litigation lawyers.

        Our lawyers are available for appointments at all our office locations at Coolangatta, Robina Town Centre, Southport, Kingscliff, Brisbane, Sydney and Melbourne

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        Lucy McPherson

        Estate Litigation
        Amber Roebeck

        Amber Roebeck

        Senior Paralegal
        Estate Litigation

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        The contents of this article are considered accurate as at the date of publication. The information contained in this article does not constitute legal advice and is of a general nature only. Readers should seek legal advice about their specific circumstances. 

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