Maria Oliveira by her tutor Ivo De Oliveira v John Antonio Oliveira [2023] NSWSC 1130

Supreme Court New South Wales

Medium Neutral Citation: Maria Oliveira by her tutor Ivo De Oliveira v John Antonio Oliveira [2023] NSWSC 1130 Hearing dates: 11 September 2023 Date of orders: 11 September 2023 Decision date: 11 September 2023 Jurisdiction: Equity Before: Kunc J Decision: Summons dismissed; plaintiff to pay defendant's costs including in part on the indemnity basis Catchwords: SUCCESSION — Family provision — Claim by severely disabled adult child in full time care brought out of time for provision for contingencies only — Plaintiff unable to demonstrate any circumstances where contingency may arise which would require provision Legislation Cited: Evidence Act 1995 (NSW) Succession Act 2006 (NSW) Cases Cited: De Winter v Johnstone (NSW Court of Appeal, unreported, 23 August 1995) Nestle Australia Ltd v McDougall [1998] NSWCA 158 Uniform Civil Procedure Rules (NSW) Texts Cited: Butterworths Australian Legal Dictionary, Butterworths, 1997 Category: Principal judgment Parties: Maria Oliveira by her tutor Ivo De Oliveira (plaintiff) John Antonio Oliveira (first defendant) Luis Higinho Oliveira (second defendant) Representation: Counsel: TJ Morahan (plaintiff) DJA Mackay (defendants)

Solicitors: Premier Lawyers (plaintiff) Sessions Legal (defendants) File Number(s): 2022/318403

EX TEMPORE JUDGMENT (REVISED) 1. Counsel for both parties described the circumstances attending this application for family provision as very sad. They were right to do so. That is because the Court must weigh the respective positions of the plaintiff - a 52-year-old non-verbal severely disabled woman - and her mother - an 82-year-old woman now living in a nursing home and suffering from Alzheimer's Disease. That being said, and it is important that it be said, the Court must nevertheless apply legal principle rather than yield to natural human sympathy. Without disrespect, I shall refer to the parties and others by their given names. 2. Over the course of a more than 50-year marriage the late Luis Oliveira and his wife Felicidade had seven children. One of those children is Maria, the plaintiff. She brings these proceedings out of time under the Succession Act 2006 (NSW) (the Act) for provision from Luis' estate (the Estate), all of which passed under his will to Felicidade. As Luis' daughter, she is an eligible person under the Act. 3. Maria sues by her tutor Ivo, who is one of her brothers. NCAT has also appointed him as Maria's guardian as to matters of her health and wellbeing. Her financial affairs are under the management of NSW Trustee and Guardian (TAG). The defendant administrators of the Estate are two of her other brothers, John and Luis. They are also Felicidade's enduring attorneys and guardians. 4. It was common ground that all of Maria's current needs are being met by her NDIS package and Commonwealth pension. The case was argued for Maria on the sole basis that provision for contingencies - ultimately quantified by an open offer at $125,000 - should be made for Maria from the Estate. 5. Maria's claim will be dismissed. In summary, this is because it fails at every stage due to Maria's circumstances. She is a person who will spend her whole life in care. Even on the most generous view of what an allowance for contingencies might cover, the Court is not satisfied that there is or will be anything in Maria's life that will require such a fund or that cannot be adequately dealt with by recourse to the sources referred to in [15] below. 6. Mr T J Morahan of Counsel appeared for Maria. Mr D J A Mackay appeared for the Estate. The essential facts, which I set out in these reasons, were either common ground or beyond dispute.