Sibling dependency at heart of family provision claim

Published 29 Jan 2017

The Succession Act 2006 (NSW) states that only eligible people can make a family provision claim against the deceased’s estate. In some cases, ruling on eligibility is fairly simple; spouses, de-facto partners and children, including those that are adopted, are eligible people under the Act.

However, claims can become more complex when the person pursuing an inheritance dispute argues that they are eligible to contest the will due to having been dependent on the person who died.

The Act states that anyone who was wholly or partly dependent and was either a grandchild or was at a particular time a member of the same household as the deceased is eligible to make claim.

But what does this mean in practice? Let’s take a look at a case that recently went before the NSW Supreme Court to see why ruling on whether or not a plaintiff was dependent on the deceased can be tricky.

Sibling makes a claim on older brother’s estate

The plaintiff in this particular case was the fifth of six children and was pursuing a family provision claim against the estate of his eldest brother, who committed suicide in 2014.

Siblings are not automatically considered eligible to make a claim under the Act, which means the plaintiff had to prove that he lived as part of the same household as his brother and was partly or wholly dependent on him.

The brothers both lived in the family home as children, so this satisfied one of the criterion. However, the court was asked to rule on whether the younger brother could be described as dependent on his older brother while they lived together.

According to the plaintiff, their mother often left the deceased in charge of the household when she was away. During these spells, he would maintain the security of the home at night, supervise homework, prepare and serve meals, and ensure his siblings were ready for school in the mornings.

Was the plaintiff a dependent?

Despite his elder brother providing a number of caring responsibilities when the mother was absent, the plaintiff and his siblings could not be considered a dependent under the Act, the trial judge ruled.

The duties the eldest brother performed were seen as a temporary measure and not the equivalent of a parent-child relationship that would usually indicate dependency.

This decision was upheld in the Court of Appeal, meaning the appellant was considered ineligible to make a claim on his brother’s estate, which was worth more than $430,000.

Are you unsure whether or not you are eligible to contest a will in NSW? Talk to Gerard Malouf & Partners Will Dispute Lawyers to find out more.

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