Cooper v Atkin [2020] NSWSC 828

Cooper v Atkin [2020] NSWSC 828

Although Kristi Cooper was an eligible person and there were borderline factors warranting her application, the Court was not satisfied that adequate provision for her proper maintenance, education or advancement in life had not been made by the deceased's will, having regard to the circumstances, the tenuous and superficial nature of her relationship with the deceased, lack of dependency, the small size of the estate, and the legitimate competing claims of the beneficiaries (children and grandchildren). Even if the jurisdictional threshold was met, as a matter of discretion, no family provision order should be made.

Jurisdiction
Australia
Judgment Date
30 June 2020
Procedural Posture
Family Provision Claim (succession) / Final Determination at First Instance
Outcome
Application dismissed
Legal Topics
['family Provision' 'eligible Persons Under Succession Act 2006 (nsw)' 'step Child Claims' 'factors Warranting Application' 'adequacy of Provision' 'testamentary Freedom' 'costs in Succession Proceedings']
['succession Law' 'equity'] ['family Provision' 'eligible Persons Under Succession Act 2006 (nsw)' 'step Child Claims' 'factors Warranting Application' 'adequacy of Provision' 'testamentary Freedom' 'costs in Succession Proceedings']

Case Brief

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Procedural Posture

Family Provision Claim (succession) / Final Determination at First Instance

Legal Issues

  1. 1 ['Whether Kristi Cooper is an eligible person under s 57(1)(e) of the Succession Act 2006 (NSW)' 'Whether there are factors which warrant the making of the application by Kristi Cooper' 'Whether adequate provision for the proper maintenance, education or advancement in life of Kristi Cooper has not been made by the will of the deceased' "If not, whether a family provision order should be made in Kristi Cooper's favour"]

Ratio Decidendi

Although Kristi Cooper was an eligible person and there were borderline factors warranting her application, the Court was not satisfied that adequate provision for her proper maintenance, education or advancement in life had not been made by the deceased's will, having regard to the circumstances, the tenuous and superficial nature of her relationship with the deceased, lack of dependency, the small size of the estate, and the legitimate competing claims of the beneficiaries (children and grandchildren). Even if the jurisdictional threshold was met, as a matter of discretion, no family provision order should be made.

Court Disposition

Application dismissed

Orders

  • ['The Amended Summons filed 24 April 2019 is dismissed.' 'Costs to be resolved by agreement within seven days, failing which written submissions on costs can be made within ten days thereafter and determined on the papers.']