Yesterday the NSW Court of Appeal dismissed an appeal by an unsuccessful FPA applicant.

The applicant was an adult child of the deceased.  His mother died leaving her estate to her spouse (there were notional estate issues as well).  The mother and step father had mirror wills which each left their estates to each other, and then equally between their five children.

The applicant’s claim was based on a need to top up his superannuation so that he would be able to retire comfortably in the future.  His claim was dismissed by the primary judge.

All 3 Judges agreed the appeal should be dismissed.  In doing so, they held:

  1. that there is no general principle that an adult claimant, whose need is generated from (his own) well-intentioned but improvident investment decisions, should not succeed.
  2. that the primary judge was not in error in finding that there was a good prospect that some time in the future , the applicant would receive a substantial legacy under the respondent’s will.

All 3 Judges also found that even if the grounds of appeal had been made out, they would have re-exercised the discretion so as to dismiss the applicant’s claim.

Read Bates v Cooke here.