Cowap v Cowap [2019] NSWSC 1104

Supreme Court New South Wales

Medium Neutral Citation: Cowap v Cowap [2019] NSWSC 1104 Hearing dates: 19, 20, 21 and 22 August 2019 Decision date: 22 August 2019 Jurisdiction: Equity - Family Provision List Before: Kunc J Decision: Time for application extended and provision ordered from notional estate Catchwords: SUCCESSION – family provision and maintenance – failure by testator to make sufficient provision for applicant – only notional estate available – application by previously healthy adult son who suffered heart attacks and seriously debilitating illnesses after deceased's death Legislation Cited: Succession Act 2006 (NSW) Cases Cited: Camernik v Reholc [2012] NSWSC 1537 Grant v Roberts, Smith v Smith, Roberts v Smith, Curtis v Smith [2019] NSWSC 843 Jodell v Woods [2017] NSWSC 143 Luciano v Rosenblum (1985) 2 NSWLR 65 Steinmetz v Shannon [2019] NSWCA 114 Taylor v Farrugia [2009] NSWSC 801 Underwood v Gaudron [2014] NSWSC 1055 Category: Principal judgment Parties: Nicholas John Cowap (Plaintiff)

Barbara Constance Cowap (Defendant) Representation: Counsel:

J Treherne (Plaintiff)

M M Pringle and A Djukanovic (Defendant)

Solicitors: Maksisi Lawyers (Plaintiff)

Campbell & Co (Defendant) File Number(s): 2017/387693 Publication restriction: No

EX TEMPORE Judgment (revised)

Summary 1. The plaintiff, Nicholas Cowap (referred to throughout these proceedings as "Nick"), sues out of time for provision from the estate of his late adoptive father (the "deceased"). Without disrespect, I will refer to the various family members by their given names. 2. The deceased left his estate to the defendant, Nick's mother ("Barbara"). Barbara is 90 years old. Nick, now 64 years old, is the child of Barbara's first marriage, which ended with the death of her husband in a plane accident. Nick has five adult half-siblings, being the children of the marriage between Barbara and the deceased. 3. The deceased died on 11 December 2015, having enjoyed a happy marriage of 57 years with Barbara. By his will made on 10 August 2012 (the "Will") he left his entire estate to her. However, excluding a few hundred dollars, the deceased's assets (including the family home and property where they had lived since 1987) were held with Barbara as joint tenants, so that they did not fall into his estate and she succeeded to them by survivorship. 4. At the date of the deceased's death, Nick was in good health after a career which included being a ski instructor and a businessman. These proceedings have their origin in the sad fact that Nick suffered serious heart attacks on 26 May and 1 June 2016, only six months after the deceased had died. After several weeks in a coma and many months in hospital, Nick has been left with numerous significant disabilities which mean that he cannot look after himself and, among other things, must use a wheelchair because it is difficult for him to walk any distance unaided. 5. Nick has no assets. His only income is his disability pension and the benefits to which he is entitled under the NDIS scheme. He is currently cared for by his former de facto partner, Tatjana, with whom he has one child, Isabella. Isabella is now a 20 year old university student. 6. Nick filed his summons on 15 December 2017, just over one year out of time. To bring his application Nick must, therefore, show "sufficient cause" for the Court to otherwise order, pursuant to s 58(2) of the Succession Act 2006 NSW (the "Act"). 7. Several critical matters were uncontroversial. Nick is an eligible person under the Act. Other than Barbara, no eligible person has put their circumstances in issue. Importantly, it was also common ground that, if the Court was to order any provision for Nick, it would have to designate notional estate from the assets which the deceased had held with Barbara as joint tenant. These were: 1. The family home and property at Wallaroo valued at the date of death and now at $1.35 million (the "Property"); 2. An interest in a share portfolio valued at the date of the deceased's death and now at approximately $100,000; and 3. Cash at bank of approximately $17,500. 1. Nick seeks provision of $600,000 to enable him to build a modular kit home ($270,000), land ($250,000), a car ($20,000) and an amount for contingencies ($60,000). Barbara opposes Nick's application. 2. Reduced to essentials, these proceedings engage two familiar considerations of moral duty in family provision matters which must not be elevated to inflexible rules and are subject to the particular circumstances of each case: Steinmetz v Shannon [2019] NSWCA 114 at [37] per White JA; [98] – [109] per Brereton JA; and [151] per Simpson AJA. On the one hand there is the obligation of a husband, particularly after a long and happy marriage, to make adequate provision for his widow: Luciano v Rosenblum (1985) 2 NSWLR 65 at 69-70. On the other hand, there is the moral duty of a parent of an adult child who has fallen on hard times (especially where they are not of the child's own making) to make, where possible, some provision for that child: Taylor v Farrugia [2009] NSWSC 801 at [57]-[58]; Camernik v Reholc [2012] NSWSC 1537 at [159]. 3. The proceedings have been conducted on the basis that an order for provision of the amount sought by Nick will require the Property to be sold. Whether, in fact, that becomes necessary is not a matter for the Court. However, I have approached the exercise of the Court's discretion accordingly. Barbara, for understandable reasons to which the Court gives the greatest of respect, does not want to leave the Property and at the moment is undoubtedly able to live there with minimal assistance. On the other hand, Nick's needs are real and pressing. 4. The Court is satisfied that Nick is entitled to the provision which he seeks. In summary, he has demonstrated: 1. Sufficient cause for an extension of time to be ordered; and 2. Looking at the matter as at today, that: 1. the Will does not make adequate provision for him (being no provision); 2. an amount of $600,000 is adequate provision; and 3. it is appropriate to designate notional estate. 1. The Court's reasons for this overall conclusion may be summarised as: 1. I accept the submission that Barbara will eventually have to leave the Property; 2. Her deep sentimental attachment to the Property, to which the Court has given anxious attention, does not outweigh Nick's strong case for provision because of his poor health and financial circumstances; and 3. Adequate provision can be made for Nick by the designation of notional estate which will still leave Barbara an income in excess of her expenditure and sufficient funds to purchase accommodation in the Canberra area. 1. Ms J Treherne of Counsel appeared for Nick. Ms M Pringle of Counsel appeared with Ms A Djukanovic of Counsel for Barbara. The Court is grateful for their detailed written and oral submissions which have enabled the matter to be disposed of by ex tempore reasons. The circumstances of this case, including Nick's need for assistance and Barbara's age, warrant the provision of reasons immediately upon the conclusion of the hearing.