NSW man fails in family ‘inner circle’ Will dispute

Date: Jan 26, 2018

The NSW High Court has dismissed a claim for a family provision order after finding the applicant to be emotionally estranged from the deceased, and therefore not a natural subject of testamentary recognition to the estate.

The plaintiff was a nephew and dependant of the deceased and his wife for 13 years on an intermittent basis. After he left the family home permanently in 1974, he lived in apartments owned by his late uncle (in which he had to pay rent) and in 1981 was gifted a restaurant. From 2004, the two rarely saw each other, aside from at family gatherings five or six times a year.

During his life, the deceased made seven Wills, none of which made provision for the plaintiff. Seven months after his uncle died, the plaintiff filed a summons seeking orders that provision be made for his maintenance and education during his childhood and teen years.
Did the plaintiff have a case?

As the plaintiff was a dependant of the deceased for a number of years, it is clear there was a relationship beyond that of a regular uncle and nephew at one point. However, he was legally obligated to take his proceedings to the executors of the deceased's estate and prove these factors warranted his inclusion as someone who should receive provision de facto.

The plaintiff had to prove his eligibility through two sections of the Succession Act 2006 – the first establishing he was a person 'who was wholly or partially dependent on the deceased' and the second establishing whether these factors are still relevant at the time the legal claim is made.

Why did the plaintiff fail to successfully contest the Will?

In the context of the plaintiff's arrival in Australia as a dependant and the relationship between the pair at the deceased's time of death, the High Court determined there was no cause for estate provision.

They first deemed that, in the deceased's role as a family patriarch, the relationship between the plaintiff as a child and his late uncle wasn't unique – the deceased provided similar support to other members of their extended family.

Further to this, the Court found no evidence of an ongoing relationship between the plaintiff and his uncle up to the time of his death. As the emotional base of a dependant relationship had long since dissipated, the plaintiff was ineligible to make any claim on the estate.

Contesting a Will, for family provision or any other reason, is a decision not to be made lightly. To do so, you should consult a solicitor specialised in Will disputes. For more information or a free consultation, contact Gerard Malouf & Partners Will Dispute Lawyers today.

Call us now on 1800 004 878 to book a free appointment with one of my compensation experts or email your enquiry.