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Examples Of Wills That Have Been Contested In Sydney

In Sydney, every capable individual over the age of 18 has the testamentary freedom to account for the disposal of their assets as they see fit. Balanced against this freedom are provisions within the Succession Act 2006 that empower certain individuals to challenge these arrangements. Close family members, dependents, and members of the deceased’s household are able to dispute the provisions of a testator’s will. Under this legislation, an eligible party can file a Family Provision Claim with the Supreme Court of New South Wales and request a larger share of the deceased estate. This article highlights some up to date examples of wills that have been contested in Sydney.

Case Study 1: Sun v Chapman [2021]

In Sun v Chapman [2021], the plaintiff made a Family Provision Claim against a deceased estate valued at approximately 2.5 million. There were two main points at issue in this case: whether the plaintiff was eligible to make a claim, and whether she was entitled to any provision from the estate.

The plaintiff claimed that she was eligible as either a de facto partner of the deceased, or because she was in a close personal relationship with him. The court considered the statutory definition of each of these eligibility categories at some length.

De Facto Relationship

The court considered all of the circumstances of the relationship when assessing whether it was a true de facto relationship, including the sexual relationship between the couple, financial interdependence, and the mutual commitment to a share life together.

While the plaintiff presented a certificate to the court that the relationship was  registered with the NSW government, the court largely dismissed this as evidence to support the claim of de facto relationship, as it was issued mere months before the deceased’s death, and the court found no evidence that the deceased was involved in the registration application.

The plaintiff stated that she and the deceased lived together for 20 years, and had a sexual relationship for five years of that time. There was clear evidence of a shared life, such as holidays abroad and daily activities. However, the court was concerned that there was a lack of commitment to the shared life, and that the relationship was more one of carer and patient. The court also decided that there was no financial dependence between the deceased and the plaintiff.

Close Personal Relationship

Under the Succession Act 2006, a close personal relationship is notable for being different to a de facto relationship or marriage. It is a relationship where two people live together and provide each other with domestic and personal care without expectation of reward or out of charity. The court was dubious of the claim that she provided care and support without fee or reward, as the plaintiff did have access at least at one point to government carer payments. However, overall the court did find it more likely that the plaintiff was in a close personal relationship with the deceased before he died rather than in a de facto relationship.

On that basis the court was satisfied that the plaintiff met the eligibility requirement. However, ultimately the court was not convinced that there were factors that warranted a Family Provision Order. Not only was the plaintiff in a comfortable financial position herself, there was no evidence that she and the deceased had ever shared financial support or interdependence.

The court concluded that the community would not expect provision to be made for the plaintiff, and dismissed the claim and made a preliminary order for the plaintiff to pay the cost of the estate in defending the action.

Case Study 2: North v Daniel [2021]

In this case, an adult son brought a Family Provision Claim against the deceased estate of his father, seeking an increase to his inheritance under the will. His existing bequest was $50,000 from an estate valued at over 3 million dollars.

As a child of the deceased, the son had an absolute right to dispute the contents of his father’s will. The court emphasised that the rights of an adult child to provision from their parent is finite. There is a community expectation that the parent will give a child a good start in life, but there is no expectation that the testator will provide sufficiently for the claimant throughout their life.

The plaintiff lived with the deceased until 1985 and made improvements to the home they shared. The plaintiff is now unable to work having suffered a workplace accident and consequently PTSD and depression. At the time of his father’s death, the plaintiff was financially secure, but did have some financial needs that could not be met by his current resources.

Given the financial need of the plaintiff, the question for the court was whether a reasonable testator in the position of the deceased would have made greater provision for the plaintiff’s proper maintenance, advancement and education. The court must make an assessment of what is adequate and proper given the size of the estate, the nature of the relationship between the deceased and his son, and the circumstances of the other actual and potential beneficiaries and claimants. The court also had to weigh the competing claim of the plaintiff’s sister who had provided substantial assistance to her father before his death.

The court was not prepared to make provision in the amount that the plaintiff requested, as it would dispossess other beneficiaries, and ignore the testamentary wishes of the deceased. Instead, the court decided to award the plaintiff a lump sum of $350,000. These recent examples of wills that have been contested in Sydney illustrate the complex issues at stake in contested will cases.

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Nicola Bowes

Dr Nicola Bowes holds a Bachelor of Arts with first-class honours from the University of Tasmania, a Bachelor of Laws with first-class honours from the Queensland University of Technology, and a PhD from The University of Queensland. After a decade of working in higher education, Nicola joined Go To Court Lawyers in 2020.
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