In the matter of Chan v Chan [2016] NSWCA 222 the deceased left an estate valued at $9.36 million to be shared between his two sons, Clement and Benedict. Clement received a house in which he was living at Gordon, valued between $1.7 – $1.9 million and a bequest of $50,000.  Benedict received the residue of the estate.

Out of time further provision application

Clement made an out of time claim for further provision out of his father’s estate. Clement claimed that further provision should be made for him out of the estate as the house he was living in urgently needed major repairs and maintenance estimated at approximately $500,000.

Clement was 65 years of age when the appeal was heard and throughout his adult life had been dependent upon the deceased for significant and ongoing financial support because of a functional impairment. The deceased had allowed Clement to live in the Gordon property rent free for over a decade and had paid maintenance and outgoings on the property until he fell ill.

The trial Judge, at first instance, granted leave to make the claim out of time but dismissed the claim. The trial Judge found that there was no need for Clement to retain the Gordon property and that it could be sold to enable him to obtain more appropriate accommodation and have funds for his future needs. Clement Appealed.

The Appeal Court found that because of Clement’s dependence upon the deceased for his accommodation, his strong desire to remain at the property, as well as the significant difficulties that relocation would have upon him due to his intellectual and psychological limitations, that having regard to the size of the estate, it was appropriate to make an Order for further provision in favour of Clement for $700,000 in addition to what had been provided to him in his father’s Will. Based on values at the time of the appeal this resulted in Clement receiving less than 20% of the estate.