In this case, the plaintiff was the son of the deceased and sought an order for provision out of the deceased’s estate under the Succession Act 2006 s 59. The plaintiff and the deceased had been estranged for many years after the deceased left the family when the plaintiff was around four and later remarried.

The day before his passing, the deceased transferred part of his estate, a Baulkham Hills property, into a joint tenancy with his second wife (ensuring she would receive the property without the asset passing through the estate), which the court said showed consciousness of the possibility of a claim by the plaintiff against his estate.

The court heard that contact between father and son was sporadic throughout their joint lives and was so limited it never resulted in what might be described as a father-son relationship developing between them.

The plaintiff was gifted $500,000 from the estate of his paternal great-aunt in 2011, with the remainder of the estate going to the deceased and his second wife. The plaintiff contacted the deceased to obtain more from the estate from the great-aunt but the deceased refused. In 2011 the plaintiff signed a deed of release of any claims that he might have had against the great aunt’s estate.

The deceased and his second wife pooled and built up assets together after their marriage in 1991 and were able to buy an investment property in Queensland, which they held as joint tenants and now generates $470 a week for the wife.

The plaintiff argued that the deceased’s estate was not obtained only through the financial success of the deceased and his second wife, but was also boosted by a property inherited from the deceased’s father in 1996, the mortgage of which was paid off by the deceased.

The other substantial component of the deceased’s estate came from the great aunt’s estate, which when she died in 2011 was worth approximately $1.5 million, while (as set out above) $500,000 was given to the plaintiff; the rest passed to the deceased. The deceased invested that money on a term deposit that remained largely intact until he died in 2022 and remained identifiable within the estate. Around $300,000 those funds were transferred into another account and have since accumulated interest, but $1.1 million was still readily identifiable by the court.

On his death, the deceased and his wife held cash in joint bank accounts to the value of $1,247,787. The court determined half of this ($623,893) belonged to the deceased and passed to his wife by survivorship upon his death, was available in cash and qualified to be designated as a notional estate. If the notional estate provisions (which only exist in NSW) were not applicable, there would have been no assets in the deceased’s estate.

The plaintiff had superannuation of $230,469.10 and a motor vehicle worth $15,500. He also held a joint bank account with his wife with a balance of $171,818.32.

His wife owned a motor vehicle worth $7,000, another with a market value of $44,000 and superannuation of $222,461.84. The combined family assets totalled $691,249.26. Until late last year, the plaintiff was earning $4,021 per month after tax from a salaried real estate position, but at the time of the hearing was engaged in a somewhat risky unsalaried commission-only real estate position. His wife’s net monthly income was $7,224.33.

The court ruled in the plaintiff’s favour and awarded him $385,000 from the notional estate.

Burgess said the case is unusual in that as it has such a complex history, a judge would often allege the witnesses lack credibility, and as there was no relationship between the plaintiff and the deceased, the court will often side with the wife for a range of reasons, including that she will likely have far less income earning capacity and more health issues.

“Here the court effectively said it will give the son a free hit,” he said.

“The interesting aspect of this case is that had this happened in any other state it would have been a different outcome. Putting the house into joint tenancy the day before he died and having joint bank accounts, in any other jurisdiction would have meant that there was nothing left in the estate. However, because this was in NSW the non-estate assets could be notionally added back into the equation.”

Burgess said there was a clear legal principle here that the judge had to make a judgement call on what he thought was the right thing, and ruled in favour of the plaintiff.

The ruling stated that the plaintiff’s distant relationship with the deceased did not automatically neutralise his claim.

“The circumstances of this case bring to mind the intuitive observations of Robb J in Kitteridge v Kitteridge [2022] NSWSC 193 at [116] – [117]. There, Robb J stated that in applying the Succession Act to make family provision orders that reflect contemporary community standards, parents engaged in bitter marriage breakdowns should be expected to:

(a) spare their children from the need to choose between their parents;

(b) understand the likelihood that children are likely innocently to suffer emotional injury from the breakdown; and

(c) recognise that when a child is forced to make an unsatisfactory choice between parents the parents should take responsibility to break down emotional barriers created by the parents' conduct and not rely upon the child to do so,” the court stated.

Burgess added it seems the court looked at the facts and impugned a guilty conscience on behalf of the deceased in his act of putting his home into joint tenancy the day before his passing.

“The strategic lesson from this case is that these kinds of decisions about estate planning should be done early, not the day before you die,” he said.

“If it had been done three years before the date of death, it would have been likely outside of the clawback rules even in NSW.”