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The Long Reaching Arm of the Notional Estate in Family Provision Claims

Cowap v Cowap [2019] NSWSC 1104 (22 August 2019)

In December 2015, Mr Geoffrey Cowap died aged 85. By his Will signed three years earlier, he left the whole of his estate to his wife of 57 years, Mrs Barbara Cowap. The principal asset of the deceased’s estate was the matrimonial home, an acreage in Wallaroo outside of Canberra, estimated to be worth $1.35M. The married couple had resided in the home for 32 years.  Mrs Cowap inherited the home by way of survivorship upon the death of Mr Cowap. There was also a share portfolio valued at approximately $409,000 and a $50,000 bank account.

The oldest child of the couple, Nicholas John Cowap (Nick), 64, made an application for family provision out of the father’s notional estate (being the matrimonial home the deceased owned jointly with Mrs Cowap). Nick suffered two heart attacks after his father’s passing that left him with significant disabilities. He could not look after himself and, amongst other things, needed a wheelchair because it was difficult for him to walk any distance unaided. Nick had no assets. His only income was a disability pension.

The Court took into consideration two competing matters: the moral obligation of the deceased to make adequate provision from his estate for his spouse, particularly after a long and happy marriage, and the moral obligation of the deceased to make some provision for his adult child who had fallen on hard times (especially when they are not of his own making).

The Court also considered the clear intention of the deceased in the Will that Mrs Cowap was to enjoy the rest of her years living in the matrimonial home and Mrs Cowap’s own strong desire to remain in the property.

Notwithstanding, the Court designated the home part of the deceased’s notional estate and made orders that the property was to be sold. The Court awarded Nick the sum of $600,000.  

Traditionally, the Court has been reluctant to oust an occupant from their property for the benefit of a family provision claimant. However, the Court was comforted in the outcome (sale of the property) by the fact that on the evidence, Mrs Cowap would be able to afford a smaller property in the same area with the same country feel for about $700,00.

The case demonstrated that there are no inflexible rules when it comes to family provision. Each application for provision must be dealt with by the Court on its merits on the evidence before the Court based on the circumstances at hand.  

Mrs Cowap ended up appealing the decision by Kunc J. The Court Appeal dismissed the appeal in February this year.

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