Australia, June 30 -- New South Wales Land and Environment Court issued text of the following judgement on May 29:

1. These proceedings concern a claim by the plaintiff, Mr Aaron Oates, for provision for his maintenance, education and advancement in life out of a notional estate of his father, Mr Steven Oates, who died intestate on 3 October 2022. The defendant is Mrs Jan Oates, who was Steven's wife and Aaron's stepmother. [1]

2.Steven's actual estate is nominal. At the date of the hearing, the gross distributable estate was $3,443.62. There are two relevant assets that are the subject of an application for designation as notional estate. The first is Steven's interest as a joint tenant of a property located in Bateau Bay, on the central coast of New South Wales. That interest passed to Jan on his death by the right of survivorship. The property is worth about $1.1m and Jan continues to reside there. The second asset that is the subject of the application is a superannuation death benefit that was paid on Steven's death, which was $293,345 in total and has been distributed by the trustee of the fund to Jan as to 90% and Aaron as to 10%. Aaron challenged that decision but was unsuccessful.

3. By way of summary, I have concluded that a family provision order should be made for Aaron and there should be notional estate orders to enable that to occur. Aaron should receive $120,000 but, at Jan's option, that should be paid from the proceeds of the sale of the Bateau Bay property (based on a percentage of the sale proceeds), with such sale to occur when Jan chooses or upon her death. There will also need to be notional estate orders to deal with costs.

The legislative context

4. As the son of the deceased, Aaron is an eligible person who may apply for family provision in respect of Steven's estate: Succession Act 2006 (NSW), s 57(1)(c). The application was brought within the time permitted by s 58.

5. Administration of the estate of Steven has not been granted. An application for a family provision order may be made even though administration of the estate has not been granted: s 58(1).

6. The Court may make a family provision order in favour of Aaron in relation to Steven's estate if satisfied that, at the time when the Court is considering the application, adequate provision for Aaron's proper maintenance, education or advancement in life has not been made by the operation of the intestacy rules in relation to Steven's estate: s 59(1)(c). The Court may make such order for provision out of Steven's estate as the Court thinks ought to be made for the maintenance, education or advancement in life of Aaron, having regard to the facts known to the Court at the time the order is made: s 59(2).

7. Section 60 of the Succession Act identifies matters that "may" be considered by the Court for the purposes of determining whether to make a family provision order and the nature of any such order. Those matters are as follows:

a) any family or other relationship between the applicant and the deceased person, including the nature and duration of the relationship,

b) the nature and extent of any obligations or responsibilities owed by the deceased person to the applicant, to any other person in respect of whom an application has been made for a family provision order or to any beneficiary of the deceased person's estate,

c) the nature and extent of the deceased person's estate (including any property that is, or could be, designated as notional estate of the deceased person) and of any liabilities or charges to which the estate is subject, as in existence when the application is being considered,

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/197157850416dbdc06feed39)

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