A man whose father denied paternity for nearly three decades has been awarded $1.7 million after pursuing a family provision claim all the way to the Supreme Court.
The 27-year-old underwent DNA tests both when his father was alive and following his death in order to prove his eligibility for a share of his dad’s fortune.
However, the deceased never accepted the plaintiff as his son, despite a Family Court decision forcing him to pay child support payments. He subsequently left the plaintiff out of his will.
The deceased’s estate
The deceased was an affluent businessman who left behind a Vaucluse property worth $34 million, which his wife received under right of survivorship laws as a joint tenant.
However, the man’s estate was in debt by nearly $300,000, leaving nothing for the plaintiff to make a claim against.
As such, the plaintiff’s lawyers asked for the Vaucluse property and the deceased’s superannuation fund, which was worth over $4 million, to be designated as notional estate.
A notional estate order allows assets that are not traditionally considered part of an individual’s estate to be included as such for family provision claims.
In this case, a written agreement between the plaintiff, the will executors and the superannuation fund agreed that the deceased’s $4 million retirement pot was available for these purposes.
Son wins family provision claim
The defendants, who included the deceased’s wife, claimed that the son shouldn’t be awarded further provisions because he’d already received financial support during his father’s lifetime through child support payments. They also said the plaintiff was a healthy adult who can succeed on his own without relying on provision from the will.
Justice Geoff Lindsay rejected these arguments and highlighted the challenges the plaintiff had faced having father who was not only absent but had rebuffed any efforts on his son’s part to reconnect.
“Neither a person guided by wisdom and justice, nor a person guided by current community standards, could reasonably conclude that the deceased’s bare payment of child support payments, under compulsion of law, has left the plaintiff with adequate provision,” he explained.
He therefore awarded the plaintiff $1.75 million to purchase a home in Glebe and have additional funds for future contingencies.
Would you like to pursue a family provision claim in NSW? Please contact Gerard Malouf & Partners Will Dispute Lawyers for more information.
