Hypothetical by Manny Wood Published in the Coffs Coast Advocate on 14 March 2020.
David passes away unexpectedly at the age of 40.
He is not in a relationship at the time of his death but he leaves one child, Harry aged 13.
David only had a brief relationship with Harry’s mother and had no contact with Harry whatsoever since he was born.
David’s will leaves monthly payments to Harry’s guardian, equivalent to his child support obligations, until Harry turns 18. David’s will leaves the rest of his $1 million estate to his two parents.
Harry’s mother makes a claim against David’s estate, which settles on the basis that she receives $100,000.
A friend of Harry’s mother, Ruth acts as Harry’s “tutor” because Harry and his mother have a conflict of interest. Ruth applies to David’s superannuation fund for provision on Harry’s behalf and the superannuation fund decides to pay Harry $400,000, to be held in trust until he turns 18 years of age.
Ruth also makes a claim against David’s estate, on Harry’s behalf, seeking further provision.
The Court ultimately rules that despite the lengthy estrangement between David and Harry, there was a moral obligation for David to provide “proper and adequate” provision for Harry.
However, the Court rules that the payments under the will and the provision for him, that were paid out of David’s super were sufficient and dismisses Ruth’s claim.
The Court then addresses the question of whether Ruth, as the unsuccessful “party” should be ordered to pay the costs of the proceedings.
The Court states that the usual rules should apply and orders that Ruth is in fact personally liable to pay David’s parents’ legal costs in defending the unsuccessful claim.
If you would like Manny to address a particular legal issue, send your request to manny.wood@ticliblaxland.com.au or call him on (02) 6648 7487.
