Illegitimacy & The Notional Estate

John Hemmes immigrated to Australia and built the fashion label Merivale named for his wife. After its phenomenal success John then started a hospitality business that is the foundation of the business run by his son today.

Edward Cameron was born in June 1990. His Mother Fiona Cameron, was a single woman, who had an extra marital relationship with John Hemmes between 1983-1989. Fiona consistently claimed John was Edwards father .

In December 1995 the Family Court of Australia declared John to be Edward’s father. The Status of Children Act 1996 (NSW) provides that, where while a person is alive a prescribed court has found expressly that the person is the child’s parent there is an irrebuttable presumption the deceased is the father of that child.

Fiona, raised Edward without the benefit of any personal relationship with John, and without the material support Edward would have had had he been granted a share of the affluence, which, John enjoyed throughout the years following his birth.

John paid Fiona compulsory periodic “child support” for Edward under the Commonwealth’s legislative scheme but did not pay anything to, or for the benefit of, Edward during his lifetime. Additionally John chose to have, and had, no personal contact with Edward.

After he turned 18 Edward contacted John who stated he would only meet him if he underwent further DNA testing that proved his paternity. Edward agreed to submit to John’s demands for further DNA testing but, in the event, ultimately did not submit to the tests required by John and therefore never met with him.

John died in March 2015 aged 83 years. He married his wife in 1954 and they had two children. John left a will dated 14 January 2015 probate of which was granted on 11 September 2015. Edward was not named in the Will and no provision was made for him.

Notwithstanding the fact that property valued at $34 million passed by right of survivorship to John’s wife he died with a net estate of -$298,005.00. However shortly before John’s death, he transferred a sum of $5.7 million to his children Bettina and Justin jointly, from a Swiss bank account.

Notional Estate

In NSW the Succession Act (NSW) 2006 enables the court to treat certain property transferred within 3 years of death that is not actually part of a deceased estate as being notionally part of their estate.

In this case the court held that John’s notional estate comprised John’s half interest as a joint tenant in the Vaucluse land and superannuation funds held by corporate trustees. The parties to the proceedings agreed, on a “without admissions” basis to deposit an amount of $4,126,342.00 into the Estates Solicitors trust account (“Designated Fund”).

Edward as John’s child is an “eligible person” within the meaning of the Succession Act and, if the Court is satisfied, that he has been left without adequate provision, then any order for family provision relief or costs made in favour of Edward will be made from the “Designated Fund”.

The Court found that Edward has been left without adequate provision for his proper maintenance, education or advancement in life out of John’s estate or notional estate. However in making the decision notwithstanding the size of the estate the court must be mindful of John’s entitlement to testamentary freedom, as the Succession Act, does not empower the Court to re-make John’s will.

Edward should be granted a legacy of $1.75 million on the basis that, notwithstanding the size of John’s notional estate he is not entitled to be established in accommodation beyond his and his fiancées’ reasonably foreseeable needs.




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