Nephew’s family provision claim fails on appeal

Published 30 Nov 2017

A man has failed to overturn a family provision claim against his late uncle’s estate in which the trial judge ruled he should not receive a legacy from the will.

The deceased left nothing to his nephew, who was an eligible claimant under the Succession Act 2006, having lived as part of his uncle’s household for 13 years.

Justice Michael Slattery oversaw the original case, where the plaintiff argued for a share of the estate based on a special bond with his uncle that he suggested was akin to a father-son relationship.

So why did the plaintiff’s original claim and a later appeal fail?

Executors disputed close relationship

A key factor in the case was the relationship between the nephew and his uncle. The plaintiff said the time he spent within the deceased’s household showed the strength of their bond.

But the estate’s executors – the deceased’s brother and adopted son – disputed there was a close relationship between the two.

The deceased migrated from China to Sydney in the 1940s and often provided accommodation and support for extended family members who were moving to Australia. The nephew was one of these relatives.

According to the executors, it was not unusual for the deceased and his wife to have family members in the household and it did not signify a special relationship.

Plaintiff fails to contact dying uncle

The plaintiff had lived continuously with the deceased between the ages of nine and 19, as well as a further three years sporadically before his uncle passed away.

Yet, witnesses claimed the plaintiff didn’t visit his uncle regularly in the years prior to his death, except for annual family parties. Crucially, the deceased was diagnosed with leukaemia in March 2012, but the court heard his nephew failed to contact him during this time.

Meanwhile, the deceased’s son opened his home to his father and cared for him in his final months.

Justice Slattery said the contrast between the behaviours of the plaintiff and the deceased’s son indicated the closeness of the relationship between the parties. He subsequently rejected the plaintiff’s claim for provision.

Plaintiff’s appeal is rejected

On appeal, the plaintiff argued that Justice Slattery had erred in his decision by failing to recognise his position within the “inner circle” of his uncle’s family and household. However, the appellate judges rejected the appeal.

“The primary judge did not err in concluding [the plaintiff] was not in [the deceased’s] ‘inner circle’ and was not ‘more closely connected’ to [the deceased] than others,” they explained.

“Rather, the overall picture of [their] relationship was that of people who had an incidental family relationship.”

This case shows a number of the factors that judges consider when ruling on family provision claims, including the strength of family bonds and the behaviour of plaintiffs in the years prior to the deceased’s death.

If you would like legal advice on contesting a will, please contact Gerard Malouf & Partners Will Dispute Lawyers.

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