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When courts consider family provision claims under section 59 of the Succession Act 2006 (NSW), a recurring issue is whether – and to what extent – allegations of historical sexual abuse by the deceased can be taken into account. This issue was notably addressed in Page v Page [2016] NSWSC 1218 and subsequent appellate decisions.
Key Principles from Page v Page and Related Cases
- Reluctance to Determine Allegations Posthumously: Justice Hallen in Page v Page expressed the view that civil proceedings for family provision orders are not the appropriate forum to determine whether allegations of sexual assault against a deceased person are established. Such allegations are difficult to resolve fairly after the death of the alleged perpetrator, who cannot defend themselves, and when others may have little knowledge of the truth of the claims.
- Not a Compensation Jurisdiction: The family provision jurisdiction is not designed to provide reparations or compensation for abuse. Its purpose is to ensure “provision out of the estate … for the maintenance, education or advancement in life” of the applicant, not to compensate for past wrongs
- Relevance of Abuse to Need: However, evidence of historical abuse is not always irrelevant. The appellate court in Page v Page [2017] NSWCA 141 clarified that such allegations may be relevant if they explain the applicant’s current financial need or deprivation of life opportunities. For example, if the deceased’s conduct caused the applicant to suffer disadvantage or hardship that now results in a need for provision, the court may consider this in assessing whether proper provision has been made.
- Cautious Approach: Courts are cautious not to let family provision proceedings become broad inquiries into historical misconduct. However, where there is a causal connection between the deceased’s conduct and the applicant’s present need, findings about abuse may be necessary to properly assess the application and the responsibilities the deceased owed to beneficiaries.
Practical and Policy Considerations
- Courts must weigh all relevant circumstances, including the applicant’s needs, the size of the estate, and the competing claims of other beneficiaries.
- Allegations of abuse are just one factor among many, and must be critically assessed in the context of the specific facts of each case.
Summary Table: Historical Abuse and s 59 Claims
Principle | Court’s Position |
Determining Abuse Allegations | Generally not determined posthumously in family provision cases |
Compensation for Abuse | Not within the scope of s 59; not a reparation or compensation jurisdiction |
Relevance to Provision | Abuse may be relevant if it explains the applicant’s need or deprivation of opportunities |
Policy Approach | Cautious, fact-sensitive, avoids turning proceedings into inquiries into historical misconduct |
Key Cases | Page v Page[2016] NSWSC 1218; Page v Page[2017] NSWCA 141; Lodin v Lodin[2017] NSWCA 327 |
Conclusion
While section 59 of the Succession Act does not create a forum for compensating historical abuse, evidence of such abuse can be relevant if it establishes a causal link to the applicant’s current needs. The court’s focus remains on whether adequate provision has been made for the applicant’s maintenance, education, or advancement in life, considering all relevant circumstances, including – but not limited to – past conduct of the deceased.
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Disclaimer: This post contains information of a general nature only and is not intended to be used as advice in relation to a specific matter. Although every care has been taken in preparing the document, it may not be accurate or complete, particularly in the context of specific circumstances. MJM Lawyers disclaims responsibility for any errors or omissions.
