Successful Claim by a Son against his Father’s Estate
The decision of the Supreme Court of NSW in Theoctistou v Theoctistou  NSWSC 1487 is a reminder of the principles which the Court applies in determining whether to make an additional provision for an adult child out of a deceased estate.
Anthony, the deceased’ son, who was 59 years old when his father passed away, was left $50,000 out of his father’s estate. The estate was valued, for probate purposes at $919,532.
Anthony had 3 brothers who also received $50,000 each. The remainder of the estate was left to Anthony’s stepmother (and the deceased’s wife of 52 years).
The Court decided that in addition to the $50,000 which Anthony received out of the estate, Anthony should receive an additional $250,000 – which was to be taken from the stepmother’s share of the estate.
The factors for such decision include:
1. Anthony had large debts of just over $400,000 in total;
2. At the time of the hearing, Anthony worked as a part-time cleaner but, due mainly to a stroke he suffered in 2006, Anthony was unable to work full time;
3. There was a “close and loving relationship” between Anthony and his father;
4. The stepmother was “in a much stronger financial position” than Anthony; and
5. The stepmother had no debts of any significance.
In granting Anthony an additional legacy of $250,000, the Court also ordered that Anthony’s legal costs be paid out of the stepmother’s share of the estate.
The Court’s decision provides a useful summary of the principles which are applied in accessing a claim to be paid out of the stepmother’s share of the estate.