In Nowak v Beska  NSWSC 166, the plaintiff applied for a family provision order under the Succession Act 2006 in respect of her sister’s (the deceased’s) estate.
The defendants were the sole beneficiaries under the will. They were a couple who were friends of the deceased who had provided care to her in her old age.
In his judgment Hallen J provides a detailed review of the relevant principles as those applied to the facts of the case. Among the many issues considered, his Honour agrees with earlier authorities to the effect that the Court’s role in such cases is to make an order (where the court is satisfied that the applicable criteria have been meet) for the “adequate” provision, in all the circumstances, for the “proper” maintenance, education or advancement in life of the eligible person. While the Court does not have a mandate to rework a will according to its own notions of fairness, family provision orders can be made if “the community expectation of the deceased would be for greater benefaction to have been made for the proper or adequate provision” of the applicant . The answer to what is adequate and proper provision is necessarily fact specific and an inflexible approach cannot be taken.
In this matter his Honour ordered that the plaintiff was entitled to receive a lump sum of $60,000 from the estate (the net proceeds from the sale of the main asset in the estate was $390,000). While his honour did not forget that the defendants were the chosen beneficiaries under the deceased’s will, he found that the estate, even though small, was sufficient to enable a modest provision to be made to the plaintiff.