Examples Of Wills That Have Been Contested in Canberra

In Canberra, a testator can make any testamentary arrangement that he or she wishes, including making specific bequests to their chosen beneficiaries in their will. This testamentary freedom is tempered by the fact that in Canberra, certain family members and dependents can dispute the terms of a testator’s will. Under the Family Provision Act 1969, an eligible person can file a Family Provision Claim at the Supreme Court of the Australian Capital Territory with the aim of securing a redistribution of the deceased estate. This article examines some recent examples of wills that have been contested in Canberra.

Case Study 1: Nenes v Armouti [2021]

In Nenes v Armouti [2021], two siblings brought a Family Provision Claim against the estate of a man who was the business partner of their deceased parents.

Like the parents of the claimants, the deceased immigrated to Australia from Greece. Together they built a business and the deceased lived with the claimants’ family for a period of time. Following the death of their parents, the siblings remained in business with the deceased for a period of time, after which he bought out their interest in the business.

The deceased’s last will left his entire estate to his own brother and sister, still in Greece, and their children. The siblings contested this will, claiming their eligibility to make such an application under the category of “person[s] in a domestic relationship with the deceased”. In order to claim this status under the Domestic Relationships Act 1994, a claimant must establish that:

• The relationship was between two adults;
• One adult provides personal or financial domestic support or commitment to the benefit of the other;
• The two adults do not have to live together; and
• The service or support is not undertaken for reward, or on behalf of a government agency or charitable institution.

The court concluded that one of the claimants, the sister, was not eligible to make a claim against the estate under this category of eligibility. However, the court did agree that the brother satisfied the criteria and was in a domestic relationship with the deceased, given his long and close association with the deceased, and the material financial support that the claimant provided to the deceased over many years.

The court came to this conclusion that the brother had a valid claim given his character and conduct, financial needs, health and potential to earn income, as well as the nature and duration of his relationship with the deceased. The court ordered that the brother receive $360,000 from the estate, enough to pay off his mortgage if he so wished.

Case Study 2: Talent v Talent [2020]

This case addressed several testamentary and estate administration issues, including a Family Provision Claim. In this case, the son of the deceased brought a claim against his mother’s estate after he was disinherited in her will. As the biological child of the deceased, the claimant had an absolute right to contest his mother’s will after he was left without adequate provision.

One impediment to the plaintiff’s claim was that he brought the claim out of time. In Canberra, a claimant can only contest a will in the six months after the court issues a probate grant. The court decided that they would hear the late claim given that it was a limited delay (two weeks), and there would not be an adverse impact on the estate administration.

The court considered a range of factors when deciding whether to make provision for the claimant, including the close relationship between the deceased and her son and their history of shared interests, accommodation and values. Witnesses described a relationship notable for “mutual respect and positive regard for each other”, but there were notes of tension in the relationship.

The court focused particularly on the history of financial arrangements between the claimant and the deceased. The claimant asserted that he had previously made contributions to his mother’s estate through renovations to the family home. However, the court observed that on balance, it was the deceased who provided financial support to the claimant, including providing subsidised or free accommodation.

As an undischarged bankrupt, the claimant is in difficult financial straights. The court found that the claimant’s own poor financial decisions were the cause of his circumstances and he had patently relied on his mother’s generosity to manage financially in the past. The claimant’s chances of maintaining gainful and remunerative employment are slim, given his age and health. Given these factors (amongst others), the court ultimately ordered that the claimant receive 30% of the estate.

The court in this case emphasised the disadvantage of engaging in litigation over a relatively small estate, noting that a considerable portion of the estate was exhausted through litigation costs.

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