Special‑Needs Son Left Out of Father’s Will Obtains Provision

Introduction
When someone with a disability or special needs is excluded from a parent’s will, the court can intervene to ensure they receive proper support. The 2021 decision Xiang by his tutor Cao v Tong demonstrates how the NSW Supreme Court evaluates such situations. This case involved a father who left his entire estate to his new partner, leaving nothing for his young son, who was autistic and required lifelong assistance.

Background

The deceased had a son, Xiang, from a previous relationship. Xiang was a minor and had significant special needs, requiring ongoing supervision and therapy.
In his will, the deceased left all of his estate to his long‑term de‑facto partner, believing she would support Xiang in the future.
Xiang’s mother (his “tutor”) applied under the Succession Act 2006 (NSW) for a family‑provision order on Xiang’s behalf, arguing the father owed a moral duty to provide for his disabled child.

Court’s reasoning
Justice Hallen considered several factors: the son’s age, his autism and moderate intellectual disability, his need for stable accommodation, and the size of the estate. The court noted that although the father trusted his partner to help, there was no legal obligation for her to do so. The judge emphasised that the deceased had a duty to provide for his dependent child, especially given the son’s special needs.

Outcome
The court ordered a lump sum of $175 000 be paid from the estate to Xiang. This amount was designed to cover future accommodation and care costs. Despite the father’s wish to benefit his partner exclusively, the court prioritised Xiang’s long‑term needs, stating that parents cannot assume others will voluntarily support a disabled child.

Takeaways for Family‑Provision Claimants

Eligible persons include children with special needs. If a will doesn’t make adequate provision, a claim can be brought even if the deceased believed someone else would provide support.
The court looks at future needs, not just current expenses. Evidence of disability, therapy costs, housing requirements, and life expectancy is crucial.
Even small estates can be adjusted. Here, the estate was modest relative to the son’s needs, yet the court still ordered a substantial sum.
Don’t delay. Family‑provision claims must generally be filed within 12 months of death in NSW.

How Langham Lawyers can help
If you or a loved one has been left out of a will or given an inadequate share, especially where special‑needs dependants are involved, our will‑dispute experts can guide you through the process. We offer a free initial consultation to evaluate your eligibility and discuss time limits. Contact us today to protect your entitlements and secure the support your family deserves.

What happens at mediation?

If you are a party to a Will Dispute or Family Provision Claim, chances are that the Court will refer you to mediation. It is an essential step in resolving legal proceedings efficiently and cost-effectively. In this short article, we take you through the process of mediating your will dispute.

In New South Wales, most Family Provision Claims are referred to a mediation by the judge. In our experience, most matters sent to mediation are resolved at mediation or shortly following mediation.

While not all matters will be resolved at mediation, it is important that parties enter into negotiations in good faith and a willingness to settle.

Who will attend the mediation?

Irma Remic Lawyer — **Irma Remic** is a lawyer and team leader of our Will & Estate Team. She focuses on Will Disputes, Will Challenges and Family Provision Claims. Before joining Langham Lawyers she lead the Will & Estate team at a boutique firm, and worked at some of the nation’s leading big name law firms.

All parties to the Family Provision Claim and their legal representatives are entitled to attend mediation. Beneficiaries under a will, who are not direct parties to the claim, may attend with their lawyers also.

If you choose us to act on your behalf as your solicitors, we will attend the mediation with you. We will also brief an experienced specialist estates barrister, who will attend the mediation as well.

The mediation will be facilitated by a mediator. A mediator is usually an experienced barrister, solicitor or Supreme Court Registrar. While the mediator will direct the process, they will not be able to determine issues or make a decision about your case. They will use their expertise to direct fruitful and meaningful negotiations. It is ultimately up to the parties as to whether they are willing to reach an agreement and how they choose to resolve the claim.

How should my lawyers prepare for mediation?

Every matter is different. In our experience, we start by thoroughly reviewing your matter with your barrister in order to provide you with advice regarding the value of the respective claims and what a reasonable settlement may be in your particular case. We then create a “position paper”, which is effectively an outline of your case and we prepare for negotiations.

How should I prepare for the mediation?

The first step is to discuss your legal rights and obligations with your lawyers. The law may not correspond with your expectations or even common sense. It is important to know what the Court may order if the parties are unable to reach an agreement at mediation.

Once you know your legal rights and obligations, you need to consider the result you want to achieve at mediation. You may also want to consider the benefit of ending a matter early compared to having the matter decided by the Court before a judge. Taking the matter to Court to be decided by a judge may require you to be cross-examined by the other side’s barrister. It will likely also involve further delay and cost.

What if we reach an agreement at mediation?

If an agreement is reached at mediation, the matter will settle and the mediation would be a success. There may be a “heads of agreement” signed at the mediation and a “deed of settlement” is likely to be drafted at the conclusion of the mediation or shortly afterwards. In many cases, a judge will then formalise or approve the settlement by handing down “Court Orders” which reflect the terms of the agreement reached by the parties.

What if we do not reach an agreement at mediation?

If the proceedings do not resolve at mediation, the parties may still be able to settle the matter in the future. However, it is likely that the matter will be listed for a hearing in order for the matter to be determined before a judge.

I have received Notice of a Family Provision Claim. What do I do?

If you have received notice of a Family Provision Claim or proceedings commencing a Family Provision claim, that means that someone has sought to dispute their entitlement (or lack of entitlement) stipulated under the Will of a deceased person. In this short article, we will give you an overview of what this all means.

What is a Family Provision Claim?

In brief, a Family Provision claim is brought by an eligible person pursuant to Chapter 3 of the Succession Act 2006 (NSW) against the estate of a deceased person. A family provision claim may be brought regardless of whether the deceased left a will or died without leaving a will (that is, died “intestate”.)

What is an Eligible Person?

An eligble person is defined in section 57 of the Succession Act as someone entitled to bring a claim against an estate. Eligible persons include:

A husband or wife of the deceased;
A de facto partner of the deceased;
A child of the deceased;
A person with whom the deceased was living in a “close personal relationship”; or
A person who was at any time wholly or partly dependent on the deceased person and was at anytime a member of the same household of the deceased.

**Irma Remic** is a lawyer and team leader of the Will & Estate Team. She specialises in Will Disputes, Will Challenges and Family Provision Claims. Before joining Langham Lawyers as Partner she worked at some of the nation’s leading big name law firms.

The final category is broad and may include grandchildren of the deceased, former de facto partners or former partners. However, being eligible to bring a claim does not mean the claim will be successful. In order to find out more about the prospects of success of a potential claim please contact our Will and Estate team.

Why did I receive notice of proceedings?

You likely received a notice because the person or persons described as “Plaintiffs” brought a claim against the deceased estate and you are either (a) an eligible person, (b) a person entitled to part of the estate (either under a will or under intestacy) or (c) a person holding property of the deceased as a trustee or otherwise.

What should I do?

It is important to speak to an independent lawyer with expertise in Will Disputes/Family Provision Claims. It may be that you should bring a claim or that you may need to raise your financial circumstances as your entitlement under the will may be at risk of being diminished.

Contact the Will & Estates Team at Langham Lawyers

Telephone: (02) 8006-1596
Email: irma@langhamlawyers.com.au