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Two grandsons successfully claim against their grandfathers Will

In a recent NSW Supreme Court decision (Curtis v Curtis [2023] NSW SC 1164), two grandsons brought family provision claims against their grandfather’s estate.

The grandsons were brothers, and both aged in their early 30’s at the time of the application.  Their grandfather, Barry Curtis died on 11 January 2022 leaving a Will. In Barry’s Will he left his entire estate to his surviving child Rodney Curtis. The estate consisted of the deceased’s home in West Ballina and a small sum of money (approximately $20,000.00).

The grandsons were the children of Barry’s other son Darren Curtis. Darren predeceased his father.

The Court was therefore asked to determine the contest between two grandsons and their uncle. 

Eligible Persons

The first step was the grandsons had to establish they were eligible persons. 

The Succession Act provides that a grandchild may be an eligible person if that grandchild was “wholly or partly dependent on the deceased person”. 

The factual matters relied upon by the grandsons were weekends spent with their grandfather when they were children and teenagers in which their grandfather stepped in to care for them while their father was working (their parents having separated when they were younger). 

The Court accepted the grandson’s evidence that they were dependent upon the deceased at least partly and that then qualified them as eligible persons to bring their claim.

Factors Warranting

The second question for determination by the Court was were there factors warranted bringing the claims.  This was the most contested issue in the case.

The Court considered an important factor being the death of Darren, and that their father would have established a testamentary intention to be a beneficiary under the Will in the absence of his death.  Further while he was alive Darren had health complications and an unstable personal life, and Barry stepped into his shoes to care for his grandsons.

The Court was satisfied there were factors warranting.

Adequate Provision

Neither grandson owned any real estate and they both had modest incomes.  One of the applicants had two (2) children, and the other applicant had a significant mental health condition (PTSD). 

The Court determined that they had established a claim for provision out of the Estate. The Court ordered that the West Ballina property be sold, and the Plaintiff’s each received 20% of the nett sale proceeds. The balance of 40% went to Rodney.

Take away messages

Each family provision claim turns on the facts. This case demonstrates that, following the Court of Appeal’s decision in Chisak v Presot,  the level of dependency the Court requires to establish eligibility is quite low.  

Potential family provision claims should be considered in the drafting of your Will. Mullane & Lindsay have experienced estate planning lawyers and estate litigation lawyers.

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