Family provision adoption and the court of appeal

The NSW Court of Appeal has dismissed an appeal bought following an action for family provision in Daley v Donaldson [2021] NSWSC 1507.


A court may make a family provision order if it is satisfied that a consent order signed by the party’s representatives meets the requirements for making a family provision order under s 59 of the Succession Act.

A mediation of the applicant’s claim for a family provision order resulted in a compromise, from which the respondent resiled, saying she had been under a misapprehension.

Both parties were operating under the mistaken assumption that as a child of the deceased the Plaintiff was an eligible person, when, in fact, he was not: s 57(1) (c) of the Succession Act 2006.

The parties agreed to a settlement of a family provision claim before the applicant discovered he was adopted by his stepfather Keith John Daley.

First proceedings

The plaintiff sought the Court’s determination there was a binding enforceable agreement under s 73 of the Civil Procedure Act 2005 (NSW).

The plaintiff submitted that the settlement agreement constituted a binding contract, with the parties intending to be immediately bound to the performance of its terms: it embodied a compromise, and the parties have agreed, despite the uncorroborated possibility of an adoption having occurred, to settle the Plaintiff’s claim for a family provision order.

At first instance, the court declined to make orders giving effect to the compromise. The settlement agreement had been signed upon the basis of representations made, including by the deceased in his Will, and other objective evidence which was incorrect.


The NSW Court of Appeal held the applicant was not a child of the deceased under s 57(1)(c) of the Succession Act and it was open for the primary judge to decline to make orders reflecting a compromise in which the executrix had entered into on a basis demonstrated to be false.

The Court of appeal stressed that objection to a family provision consent order is different from a party seeking to rescind a contract at common law or in equity, or to resist specific performance.

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