MJM Lawyers

MJM Lawyers Knowledge Base

It’s what you know.

Family Provision Case - Member of a household

Lester & Ors v Lester & Ors; In the Estate of Dulcie Brown [2020] NSWSC 958 - Kunc J

This case concerned four separate claims for provision from the estate of the late Dulcie Brown. The deceased died on 2 April 2017 and was survived by her three adult children, Sandra, Terry and Paul. The deceased’s will dated 1 April 2015 appointed her three children as the sole beneficiaries and co-executors of her estate. The family provision claims were brought by Sandra’s husband, Clark Senior, and three of the deceased’s adult grandchildren, Denise, Megan and Clark Junior. Denise, Megan and Clark Junior are the children of Sandra and Clark Senior. The plaintiffs claimed to be eligible people pursuant to s 57(1)(e) of the Act, having been wholly or partly dependent on Dulcie at certain times during her life, either as her grandchildren or someone who was a member of Dulcie’s household.

The defendants, Paul and Terry, disputed that the plaintiffs were eligible to make a claim. In the alternative, they claimed that there were no factors which warranted the making of their claims. Sandra did not participate in the proceedings. The two issues to be determined by the Court were the plaintiffs’ respective family provision claims (with eligibility and factors warranting contested in each claim) and, in the event the plaintiffs were successful in the first issue, a determination on how the burden of that provision should be borne by the current beneficiaries of the estate.

The deceased owned a property in Phillip Bay (the Phillip Bay Property). The property had been renovated in or around 1992 to create two additional units on the land (the Upstairs Unit and the Downstairs Unit). The Upstairs Unit had its own separate entrance and electricity and water meters. The Downstairs Unit was linked to the main residence and was connected to the main residence’s electricity and water meters. The Lester Family asserted that they moved into the Upstairs Unit of the Phillip Bay Property from 1998. This was disputed by Terry and Paul.

Clark Senior claimed that he and Sandra had been separated since on or around 2004, however Sandra deposed that she was married to Clark Senior and that they did not live together on a full-time basis. In or around June 2016, Clark Senior moved into the Downstairs Unit of the Phillip Bay Property, where Sandra had lived since 2005. At that time, Megan and Denise were living upstairs.

At the time of the hearing, Clark Senior, Sandra and Terry were on Centrelink benefits. Megan and Denise had been on Centrelink benefits for some time; but at the time of the hearing, they were both employed in a permanent part-time position at Australia Post. Paul was employed in a permanent, full-time role.


The Court accepted that the Lester Family did move into the Upstairs Unit of the Phillip Bay Property for some period between 1998 and 2002, however the Court noted that the members of the family had individually moved between the Phillip Bay Property, a property in Malabar and a property in Maroubra variously between 2002-2016.

The Court was satisfied that the role of caregiver for the deceased from mid-2016 was filled primarily by Sandra, Denise and Megan. The Court accepted that Denise had been providing care and assistance to Dulcie from at least October 2013. The Court was satisfied that Megan had not lived permanently at the Phillip Bay Property providing full-time care to Dulcie until around early 2016, although it was accepted that she had provided some occasional assistance to her grandmother since 2010.

The Court did not accept that Clark Senior was a primary caregiver to Dulcie and noted that Clark Senior received the full Carer’s Payment (and Carer’s Allowance) in relation to Megan during the entire period in question. However, it was accepted that Clark Senior had moved into the Phillip Bay Property in or around June 2016 and at this time assisted Denise and Megan in carrying and moving Dulcie. In relation to Clark Junior, the Court found that at its highest the care provided by him should be characterised as incidental care that could reasonably be expected of an extended family member.

Kunc J considered the current law on eligible persons, specifically the principles explained by Hallen J in Bowditch v NSW Trustee and Guardian [2012] at [114]. His Honour noted that the Act does not specify a requisite time period for which an applicant must have been a member of the same household as the deceased. Further, the period in which the applicant and the deceased shared the same household does not necessarily have to coincide with the period during which the applicant claims to be wholly or partly dependent on them.

In considering the legal principles pertaining to the meaning of ‘household’, his Honour noted that being a ‘member of the household’ is predicated upon the collective notion of persons ‘living together’ in the same home, underscored by a sense of unity, intimacy and shared experience. The concept also requires a degree of continuity and permanency of mutual living arrangements.

The Court was satisfied that Denise, Megan and Clark Junior were eligible people pursuant to s 57(1)(e) of the Act. The Court was not satisfied that Clark Senior was an eligible person within the requirements set out in s 57(1)(e)(ii) of the Act. This was because the Court was not satisfied on the balance of probabilities that a person residing in the Upstairs or Downstairs Units could be considered, prima facie, a ‘member of the household’ in which the deceased lived. His Honour did not believe that Clark Senior had provided sufficient evidence to establish that there was a ‘household’ maintained between him and the deceased.

In relation to Clark Junior, the Court was satisfied that he was partially dependent on Dulcie from time to time for financial support (as she often purchased school uniforms, football boots and school items for the children). Although it was accepted that Clark Junior was an eligible person, his application was dismissed for lack of factors warranting. His Honour was not satisfied that Clark Junior’s actions went beyond community expectations of the ordinary relationship between a grandchild and his grandmother.

The Court was satisfied that Denise and Megan had met the factors warranting requirement. The Court concluded that the deceased’s Will did not make adequate provision for Denise or Megan. At the time of hearing, and after deducting the plaintiffs’ costs on the ordinary basis and the defendants’ on the indemnity basis, the distributable value of the estate was $1,166,426.82. His Honour considered that adequate provision for Denise was in the amount of $65,000 and $55,000 for Megan. Based on the financial needs of Terry, Paul and Sandra, his Honour considered that Terry’s share of the estate should bear 20% of the provision and Paul’s should bear 80%.