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 Cases – Will Disputes & Family Provision Claims In NSW

This page provides details regarding cases that have changed the dynamics within the area of Family Provision Application and still have an impact towards these types of Applications. 
Important Cases
Eligibility CasesCosts Cases
Eligibility Cases
Spouse & Children
  • Kelly v Deluchi [2012] NSWSC 841
    • In Kelly v Deluchi the deceased made a will leaving a pecuniary legacy of $50,000 to his son, Mark, $75,000 to his son Peter and $75,000 to his daughter Michelle. The will gave a further pecuniary to a friend, the proceeds of a life policy to his grandchildren and the residue of his estate to his wife who was not the mother of his children.
    • The estate was insufficient to pay the legacies in full and as a result they abated rateably. Initially an application for provision was made by each of the deceased’s children. One claim was settled and the other two proceeded to a hearing.
    • Hallen AS J held that the resolution was a relevant property transaction falling within s75 of the Act. He also held that s83(1)(a) of the Act was satisfied in that the relevant property transaction directly disadvantaged each of the plaintiffs, each of whom were persons entitled to apply for a family provision order.
    • The decision is illustrative of the manner in which the notional estate provisions operate in respect of superannuation. His Honour designated the property of the superannuation fund as notional estate to the extent that the actual estate was insufficient to meet the order for provision and costs.
  • John Xavier Ogburn v Marita Beresford Ogburn: Domenic Ogburn v Marita Beresford Ogburn [2012] NSWSC 79
    • Ball J held that a transfer of a matrimonial home by the deceased to himself and the defendant as joint tenants within one year of his death did not fall with s80(2)(b) because the defendant, who was the deceased’s widow had contributed substantial sums of money towards property renovations and had a strong moral claim to have it transferred into her joint name which outweighed the moral claim of the plaintiffs who were the deceased’s sons.
De Facto Relationships
  • Westwood v Quilty & Ors [2013] NSWSC 109
    • This case illustrates that a deed of settlement may be set aside on the basis that certain parties were misled into the settlement. This case specifically arose from a breakdown of a de facto relationship.
  • Marando v Rizzo [2012] NSWSC 739
    • De Facto Relationship recongised in the Courts. The de facto relationship was for only 8 months but was awarded a considerable amount of the deceased’s estate.
    • Thus, the determination of the existence of a de facto relationship is essentially impressionistic. If sufficient pieces of evidence exist which, when viewed cumulatively, and through the application of common sense and proper reasoning, satisfy the finder of fact that the relationship is a de facto relationship then the statutory test is met: Scragg v Scott [2006] NZFLR 1076 at [64]
  • Simonis v Perpetual Trustee Co Ltd (1987) 21 NSWLR 677
    • Plaintiff and deceased met regularly at North Sydney Bowling Club from 1967 to 1980; when Plaintiff separated from his wife in 1980 he moved in with deceased; there was a sexual relationship; they cared for each other; they travelled together; publicly they presented as a couple; when she became ill and was hospitalised he was a regular visitor.
    • The Defendant argued that they maintained separate lifestyles, she had her friends and that there was no joining of finances.
    • Court determined that the relationship had an element of permanence; each had rich emotional support for the other; there was a merging of lives and they held out themselves to friends as a couple.
  • Roy v Sturgeon (1986) 11 NSWLR 454
    • Any determination of a De Facto Relationship is to be a value based judgement having regard to all the circumstances at hand.


Step Children/Member of the Household & Dependant
  • Ball v Newey (1988) 13 NSWLR 489
    • “Dependence” is the condition of depending on something or on someone for what is needed. It includes actual dependence not just for basic necessities or sustenance but also to support a standard of life set by the parties themselves.
  • Benney v Jones (1990) 12 NSWLR 559
    •  Plaintiff and deceased had a homosexual relationship from 1970’s. They each had their own residence. Deceased purchased farm property in June 1985; DOD was 16/12/88; each of plaintiff and deceased was financially capable of buying premises elsewhere.
    • It was argued by the Plaintiff that dependency can be purely an emotional dependency alone.
    • Priesley JA held; If it is relevant, it cannot be said that what they chose to do (ie their living arrangements) was unreasonable; and in order to support the mode of life they wished to pursue, each was, it is open to find, partially dependent on the other.
  • Petrohilios v Hunter
    • Plaintiff lived with deceased from 1946 to 1959 (when she was married at 18). The evidence was that the deceased step-mother treated her as her own child during that time
    • Held; ‘Dependence … is not limited to financial or material matters but also includes other forms of dependence analogous to but distinct from financial dependence such as a mother’s services to a young child’
Foster Children
  • Carney v Jones [2012] NSWSC 352
    • The will was contested by 2 adult foster children and one adopted child.
    • The estate was only left to the biological child and neither of the foster children were in the will.
    • The will stated the following: “AND I DECLARE that after careful consideration I have made no further provision in this my Will for my foster children the said CLEMENT RICHARD JONES, ALVA JESSIE GRIFFITHS and JUDITH ANN CARNEY as I have already made adequate provision for them”
    • It was held that the foster children had a right to apply for a family provision order, the orders that were made as follows:
      • Foster child # 1: $40,000 (in addition to $40,000 under will) Foster child # 2: $40,000 (in addition to $10,000 under will)
  • Wilcox v Wilcox [2012] NSWSC 1138; Chappel v Wilcox [2014] NSWCA 392
    • The grandson sued his grandfather’s deceased estate with the effect of depriving his mother from her inheritance in a dispute.
    • The grandson was depicted as an individual who had an unhealthy sense of entitlement. Despite this the grandson was awarded a modest provision of his grandfather’s deceased estate on the basis that the grandson would have been entitled and been given that amount through a testator.
    • However, it is important to note that the case has since been appealed and the above result was reversed. The decision upholds the general principle that there is no automatic right of entitlement of a grandchild to their grandparent’s estate.
  • Vanvalen v Neaves
    • Grandchild alleged four periods of dependence; (1) when Julia, her mother and sibling stayed with deceased for three months after father became violent; (2) school holidays from age of 12 to 16; (3) when Julia lived and worked, by her own choice, from the end of year 10 (1985) to 1993 on Willow Vale; (4) 1993 to 1994 when she lived and worked on Tarlo Property.
    • Held; ‘Grandchild dependence must be direct and immediate not indirect and incidental such as a grandparent providing support and maintenance of the grandparent’s own child
Close and Personal Relationship
  • The following elements are needed pursuant to the judgment in Harkness v Harkness [2011] NSWSC 1421 [42]:
    • Co-habitation, although not necessarily fulltime; however, there must be sufficient shared residence, which invites a consideration of such factors as whether the person said to be living together had a common residential address; where not absent temporarily for holiday, employment or for other reasons; and where they usually kept their clothing, domestic and personal effects, regardless of the number of days or nights spent, perhaps, at another place;
    • Physical proximity in the same residence, in the sense of simultaneous physical presence;
    • Some personal association with each other;
    • The sharing of facilities of day-to-day living on a regular and recurrent basis, often described as sharing a household, including but not limited to, the performance of domestic tasks;
    • Deciding household questions together and, whilst a social and economic partnership of the parties is not required, there should be a sharing of the burden of maintaining a household;
    • Regarding the place, or places, in which the two adults live as “their home”;
    • There being no present intention of definite or early removal, a continuity of association with the place; remaining for an undetermined period, not infrequently, but not necessarily combined with design to stay permanently
Costs Cases
  • Carey v Robson & Anor and Nicholis v Robson & Anor (2009)
    • Two sisters (Plaintiff) claimed for their Father’s estate (20%). The Defendant was the beneficiary for the remainder (80%). The Defendant’s wife work over many years had allowed the deceased to retain the property and had contributed to the value of the business operating on the land.
    • The Defendant forgone education and career opportunities to build the farming business and this contribution were recognised by the testator.
    • Plaintiff’s showed that they were clearly in a superior financial situation to the Defendant.
    • Plaintiff’s had to pay their own legal costs for the claim and also pay the Defendant’s costs on a party/party basis. The inheritance under their Father’s Will and their own disclosed financial situation the Plaintiffs were deemed to be in a satisfactory financial situation to bear the burden of the costs.
  • Practice Note 23 – Mentioned in Carey v Robson
    • If any Affidavits include irrelevant material, the Court may order the party responsible for that Affidavit pay:
      • His/hers own costs of preparing the Affidavit and any time spent dealing with the Affidavit in Court;
      • The indemnity costs of other parties to the proceedings in responding to the Affidavit.
    • Collet v Knox [2010] QSC 132
      • Court’s growing concern that legal costs can be disproportionate to the size of the estate or the benefits ultimately received by the Applicant.
      • “As a general proposition, I consider it accurate to assert that before embarking on expensive litigation the executors need to give careful consideration to what amounts they will expand and how best they should discharge their duties”.
  • Harkness v Harkness
    • Requires that the plaintiff, not the estate, bear both her own and the defendant’s costs of the proceedings. It was noted that the plaintiff would not be adversely affected financially as the provision out of the estate would be sufficient to pay the costs of the defendant and her own costs.
    • An unsuccessful plaintiff may be allowed his or her costs out of the estate where the claim is meritorious, reasonable or borderline.