Which case won?

The case for Y
  • I satisfy three categories of legal eligibility to make a claim against the will. First, I was living with G in a de facto relationship at the time of his death. Secondly, I was partly dependent on G and was a member of his household. Thirdly, I was living with G in a “close personal relationship” at the time of his death.
  • I had a secret romantic relationship with G, which took place exclusively at G’s pharmacy, for a period of 14 years.
  • We met in 1999 and for the first two years spent about three or four days per week together, for about three to five hours on each occasion. By 2001, we commenced a sexual relationship, conducted entirely in secret and exclusively at the pharmacy, because G spent most of his life at the pharmacy.
  • We lived our secret life in the pharmacy’s backroom dispensary. There we lived together and would cook and eat together, watch television together and have sex. I also helped G do the pharmacy books and stock the shelves.
  • Witnesses have confirmed that G routinely socialised at the pharmacy, and cooked, ate and slept there, and that I was a regular visitor to the pharmacy and would stay there until the early hours of the morning.
  • G also provided business advice to me with respect to purchasing a tyre business and he provided me with financial support to make the purchase. He also gave me the login details to his personal bank accounts, so that I could access money whenever I needed it, which I routinely did.
  • Since the facts show that I was living with G as a couple and that I was dependent on him, I am eligible to make a claim against his will, and the court must grant my appeal.
The case for C, the executor
  • Y does not satisfy the criteria for eligibility to challenge my uncle’s will.
  • Y and my uncle never had a romantic relationship, nor did they live together. There was no privacy at the pharmacy, so how exactly could a “secret” relationship take place for 14 years without anybody noticing?
  • My uncle never displayed any interest in sexual activities with other males. He had long-term sexual relationships with women, whom he spoke about regularly to me, my sister and to his friends.
  • Y and my uncle did not meet in 1999 as Y asserts. They met in 2007 through Y’s wife at the time. Between 2007 and my uncle’s death, Y and my uncle had a friendship or a commercial relationship, but nothing closer.
  • The funds that my uncle provided to Y were loans, not gifts. My uncle always intended that these loans would be repaid. My uncle had conversations with third parties where he indicated the payments were loans. Also, Y commenced a pattern of regular repayments, commencing shortly before my uncle’s death.
  • Further, my uncle did not live at the pharmacy. He had a residence in Strathfield where he lived. He may have stayed at the pharmacy on occasion, but this only involved him putting his head on the desk for a few hours. There isn’t even a bed or shower at the pharmacy.
  • Since the facts show that my uncle and Y were not living together and that Y was not dependent on him, the court must dismiss Y’s appeal.

So, which case won?

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Expert commentary on the court's decision

Tierah Faulder
Tierah FaulderLawyer
“This case shows that any person challenging a will should be very careful about such a challenge. This is especially so if, unlike a spouse or child, that person is not automatically eligible to challenge the estate and so must establish that he or she lived with the deceased.”
Court dismisses Y’s appeal

In Yesilhat v Calokerinos [2021] NSWCA 110, the NSW Court of Appeal dismissed the appeal of Y, Mr Okan Yesilhat, ruling in favour of the executor, Ms Cleopatra Calokerinos.

The Court of Appeal held that the primary judge’s conclusions fell within the range of those reasonably open on the evidence. There was no error in his findings that there was no de facto relationship, no dependent household membership and no close personal relationship between Mr Yesilhat and the deceased, Mr George Sclavos.

Y must establish he is “eligible person” under Succession Act

One of the relevancies of this case is that it highlights that under section 57 of the Succession Act, only certain persons are eligible to make a family provision claim.

Persons automatically entitled to make such a claim include spouses, people living in a de facto relationship, and biological and adopted children.

Mr Yesilhat tried, but failed, to establish that he was in a de facto relationship with the deceased.

Other potential claimants need to prove more.

For example, grandchildren must show that they were “wholly or partially dependent” upon the deceased person.

Anyone else (including stepchildren, siblings, parents, quasi-partners, friends etc) must prove that they were “wholly or partially dependent” upon the deceased AND that they were a “member of the household”. Alternatively, they must prove that they were living in a “close personal relationship” with the deceased.

Mr Yesilhat failed to establish either of these grounds.

The court pointed out that with respect to all three categories that Mr Yesilhat asserted, it was necessary for him to show that he lived with the deceased.

Y fails to establish de facto relationship

A de facto relationship is defined under section 21C of the NSW Interpretation Act 1987.

It states that a de facto relationship exists between persons who have a relationship as a couple and are living together.

To determine whether persons have a “relationship as a couple”, the court may consider any matter it thinks fit, including but not limited to, the duration of the relationship, the nature and extent of their common residence, whether a sexual relationship exists, the degree of financial dependence or interdependence, and the degree of mutual commitment to a shared life.

When a de facto partner challenges a will, there is no need to show the existence of a de facto relationship for more than two years.

Ultimately, to determine whether a person is eligible to challenge a will, the court has regard to the relevant legislative provisions, as well as the facts and evidence presented in each case.

On the facts, the court was not satisfied that Mr Yesilhat was in a de facto relationship with the deceased.

Of the alleged sexual relationship, the primary judge found that there was none.

The Court of Appeal noted that this finding of fact was heavily dependent on the judge’s views as to the credibility of the witnesses. With respect to Mr Yesilhat’s evidence, the judge noted that the court “simply cannot trust a man with Mr Yesilhat’s dishonest inventive capacity”.

Indeed, in separate criminal proceedings in 2018, Mr Yesilhat was found guilty of 14 charges relating to the misappropriation of money from the deceased’s bank accounts.

Y fails to prove “close personal relationship” or membership of deceased’s household

A “close personal relationship” is defined in the Succession Act to be a “relationship (other than a marriage or a de facto relationship) between two adult persons, whether or not related by family, who are living together, one or each of whom provides the other with domestic support and personal care.”

The court emphasised that like a de facto relationship, a “close personal relationship” and being a member of the deceased’s household both require that the claimant and the deceased were living together.

Of living together, the court said that:

…there is a distinction between a visitor and a resident, which may be easier to recognise than precisely describe; but residence involves aspects of continuity and permanence, and indicia such as use of the place as an address, and as a location where personal items and effects are kept and the activities of daily living (such as sleeping, washing and dressing) are performed.

Brereton JA, one of the judges in this case, arguably went further in the case by saying that unless there is a common residence (though it need not be full time), visiting, even frequently and repeatedly, is insufficient for a claimant to be an “eligible person”.

In rejecting the argument that Mr Yesilhat and the deceased lived together, the court noted that there was no bed or shower at the pharmacy, no clothes or other personal possessions at the pharmacy, and no other evidence that supported an inference that the deceased and Mr Yesilhat lived at the pharmacy in a relationship as a couple.

Importance of proof of living together

This case shows that any person challenging a will should be very careful about such a challenge.

This is especially so if, unlike a spouse or child, that person is not automatically eligible to challenge the estate and so must establish that he or she lived with the deceased.

For example, a stepchild, sibling, parent, quasi-partner or friend who has not lived with the deceased cannot make a claim for family provision, even if they provided domestic support or personal care to the deceased. This is so even if was impossible for the deceased to have lived on their own without such assistance.

NOTICE: This article is accurate as at the time of publication and does not constitute legal advice. Please see our legal notices page for more information. Information related to coronavirus can be outdated very quickly.

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