Family Provision is not a “Suplementary System of Social Welfare”

Robert Kohari brought a family provision claim against Paul Kohari’s estate (valued at 1,040,000) alleging he was Paul’s son despite Paul’s adamance that Robert was the product of his wife Julia Clark’s extra-marital affair. Similarly the executors of Paul’s estate disputed Robert’s claim and DNA testing was proposed. Against the wishes of Robert and Julia the Court ordered that DNA testing take place establishing that Robert was in fact Paul’s son.

At the time he brought the claim Robert was 38 years old, had no qualifications, had been unemployed for 17 years, was obese, reliant on social security, and supported a wife and four children in rented premises. He had no assets and debts of $25,000.

Paul had no contact with Robert since separating from his wife Julia when Robert was eighteen months old. Paul separated from Julia because he believed she had been unfaithful and that Robert was not his son. There was an older child of this marriage Joseph and a step child. Paul continued to have contact with Joseph who subsequently came to live with him.

Robert made two attempts to contact Paul and establish a relationship but Paul refused to respond to these written communications. Paul told his relatives that Robert was not his son; preventing Robert from having a close relationship with his grandparents or receiving a legacy from his grandmother’s estate – estimated to be around $90,000.

Paul started a relationship with Julia Santa some years after separating from Julia Clark; living in a de facto relationship until his death. Paul was extremely ill in the last nine years of his life and his de facto partner was his primary care giver.

Paul’s de facto partner Julia was the only named beneficiary in his will; she was 69, receiving a pension of $405 per week, had $12,500 in cash and anticipated she would receive $300 per week from the renting of her investment property which was worth $250,000. She had diabetes and other health issues. Julia wished to purchase a home in the Central Coast which was estimated to cost $630,000. The Court considered that Julia had a very strong competing claim on estate and that the relationship that she had with Paul “should be treated as a marriage”.

Robert’s elder brother Joseph was also excluded from the will. Ironically Paul had made a Family provision claim against his mother’s estate which left everything to the grandchildren for the following reason

“We want to give the grandchildren a start in life. Our children have had enough from us. They have their own houses. They are okay. They can look after themselves.”

The Court was highly critical of Paul believing that his selfishness toward his children compelled it to disregard his testamentary wishes and implement a distribution in line with community expectations. When considering the appropriate level of provision, although Paul’s rejection was condemned, the Court did not consider that it was reasonable for Robert to expect to receive a home but considered that it would be reasonable to give him a deposit to assist him to purchase a home.

Additionally the Court took Robert’s actions throughout his lifetime into account, declining to use the claim as a ‘supplementary system of social welfare’ as the Court was of the belief that Robert had failed to take responsibility for his own lifestyle subsequently awarding him $100,000 largely calculated on the basis of the wrongful exclusion from his grandparents’ wills.

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