The deceased died in 2019 survived by his adult son, two adult stepchildren and a former spouse. By his Will the deceased appointed his son executor and sole beneficiary of his estate. The estate was not a large one at just under $500,000. The deceased’s adult stepson applied to the Court claiming adequate provision for his proper maintenance and advancement in life had not been made by the deceased’s will and he sought $240,000 from the estate.
The Court could only make an order for provision in favour of the stepson if it was satisfied the stepson was an eligible person. As an ex-stepchild, he was eligible to make an application as a person who was partly dependent on the deceased and a member of the deceased’s household from 1973 to 1981, except for a short break in 1978 provided he could establish there were factors that warranted the making of his application.
In undertaking a review of the evidence, the Court noted “I accept that there would be a range of views within the community as to whether a testator, who had been divorced from their adult stepchild’s parent for nearly 30 years and who had had no contact with that stepchild for over 14 years, would have any moral obligation to provide for them. There is also an absence of evidence of the deceased himself acknowledging any ongoing relationship…for some years. Nevertheless, a relationship existed that was, in my view, close enough to that of a parent/child relationship for a significant period of his life, particularly during his teenage years and young adulthood, such that he [the stepson] could be considered a natural object of testamentary recognition, and I consider that it warrants the making of his application”.
Before making an Order for provision out of the deceased’s estate, the Court had to be satisfied, that adequate provision for the stepson’s proper maintenance, education or advancement in life had not been made by the deceased’s will. In undertaking this assessment, the Court took into consideration all the factual circumstances relevant to the application not least of which included the deceased’s testamentary wishes and the interests of the deceased’s son as the sole beneficiary under the deceased’s will and the competing claimant to the stepson’s application.
Notwithstanding the history of the relationship between the deceased and the stepson and the stepson’s needs, making an evaluative judgement based on all the circumstances of the case assessed at the date of the hearing, the Court held “it was open for the deceased, acting as a wise and just testator, to provide for” his son to the exclusion of his stepson. Accordingly, no provision from the estate was ordered in favour of the stepson.
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