Carer’s $550,000 family provision claim overturned on appeal

Published 08 Dec 2017

The appeals process is an integral part of the Australian legal system, enabling people to contest a judge’s decision and have the matter reheard.

However, the appeals process goes both ways. Successful will dispute plaintiffs can see rulings overturned, as one family provision claimant recently discovered.

The original case, which we reported on earlier this year, involved a man who sought provisions from the estate of a deceased woman for whom he had offered care and support in the months before her death.

He was awarded $550,000 after Justice Geoff Lindsay found that the plaintiff was an eligible claimant who had a close personal relationship with the deceased.

Executor appeals the decision

The deceased’s younger brother was the executor for his sister’s estate, and he contested Justice Lindsay’s verdict on several counts.

The grounds of the appeal included that the respondent:

  • Was not an eligible claimant under the Succession Act 2006;
  • Did not suffer from a diagnosed mental health disability, as suggested in the original trial; and
  • Was not a credible witness.

Eligibility was a crucial issue due to the fact that the other grounds of appeal would be made redundant if the respondent failed to meet the relevant criteria in order to make a claim. As such, the appellate judges ruled on this matter first.

Was the claimant eligible?

Claimants who are pursuing an inheritance dispute under the ‘close personal relationship’ definition must:

  • Be living with the deceased in a situation where one or both provide domestic support and personal care for each other;
  • Not be receiving a fee or reward for such services; and
  • Not be working on behalf of an organisation or person.

Justice Lindsay ruled that the deceased and the respondent were living together in a close personal relationship, but witness evidence that the appellate judges examined contradicted this finding.

Carers and family members of the deceased said no one else was living in the hotel where she resided. Crucially, a police officer who attended the scene on the night the deceased passed away said it was not possible for another person to be sleeping on either of the beds in the room.

“[The respondent] said he would check on the deceased daily, bringing food, drink and checking her welfare. He also stated that he did not live with the deceased but would sometimes sleep on the floor when caring for her,” the officer added in his notes.

Appeal allowed and decision overturned

The appellate judges ruled the respondent did not meet the required criteria for living in a close personal relationship with the deceased.

They also said Justice Lindsay had erred in allowing the respondent’s mental health disability claims factor into his decision-making, as no medical evidence was offered to prove the man suffered from a psychological condition.

Unfortunately for the respondent, the appeal was allowed and his summons was dismissed based on the ineligibility of his claim.

This case is an important reminder that inheritance disputes are a complex area of law that require experienced lawyers who can advise you on whether a claim is likely to succeed when pursued in court.

If you’d like to discuss whether you are an eligible claimant for a family provision claim, please contact Gerard Malouf & Partners Will Dispute Lawyers.

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