Which case won?

The case for the brother
  • I require a larger share of the estate than what I am due to receive under the laws of intestacy for maintenance, education and advancement in life.
  • Specifically, I need sufficient funds to be able to buy a residence to accommodate myself, my partner and my uncle, who I continue to care for and support.
  • My uncle cared for and supported us when my parents’ marriage broke up, so morally, my mother’s estate should provide for his needs as well as my own.
  • My sister is wealthy and can afford to have her share of the estate reduced. She isn’t looking after our uncle, whereas I am. My loyalty to him should be commended.
  • My mother resented me for siding with my father during their divorce. I did so because she had an affair which broke my father’s heart and shattered the relationships within the family.
  • It’s true that I was estranged from my mother for many years before she died. However, this estrangement was entirely her doing, not mine.
The case for the sister
  • It’s incorrect to claim that the estrangement between my brother and my mother was entirely her doing. He had no contact with her for 19 years and made no effort to get in touch with her. At the time of her death she didn’t even know his whereabouts.
  • My mother had zero obligation to provide a residence for my brother’s partner.
  • Similarly, my mother had no obligation whatsoever to provide a residence for my uncle, the brother of the man she divorced in 1988, nearly three decades before she died.
  • As my older brother can confirm, my younger brother stood between us and our uncle, thwarting any ongoing relationship we might otherwise have had with him.
  • My younger brother has taken charge of a significant amount of our uncle’s wealth and used it for his own benefit. He also receives a pension as our uncle’s carer.
  • My younger brother’s history clearly shows him to be a grasping, greedy user of other people and their property. This claim is simply another example of that behaviour and the court should dismiss it.

So, which case won?

Cast your judgment below to find out
Case A Case B

Case B won. You were right!

How people voted
case a18%
case b82%

Expert commentary on the court's decision

“A deceased person is not generally obliged to provide an independent-living, adult claimant with a dwelling or the means to support a third party.”
Supreme Court dismisses younger son’s family provision claim

In the case Re Estate Luce; Turch v Tripolone [2020] NSWSC 117, the Supreme Court dismissed the claim of the younger son, Robert Turch, on the estate of his late mother, Antonietta Luca, and found in favour of his sister who had opposed the claim, Diana Tripolone.

The court stated that it was neither necessary nor appropriate for it to delve into the disharmony between the siblings, as its role required a more dispassionate approach, as did the dictates of wisdom, justice and regard for community standards.

Family provision order principles

As a child of the deceased, Mr Turch was an “eligible person” and was entitled to make a claim on his mother’s estate under the NSW Succession Act 2006.

For Mr Turch to be successful in a family provision claim, he needed to establish that he had been left without “adequate provision for his maintenance, education and advancement in life” from his mother’s estate and that further provision ought to be made for him from the estate.

Estrangement not necessarily an impediment to family provision claim

The judgment noted that estrangement between a deceased person and the maker of a family provision claim is not necessarily an impediment to granting that claim. However, it is a factor that is taken into account in all the circumstances of a particular case.

While Mr Turch attributed his estrangement from his mother to her, the court stated that that “rings hollow”. The court noted that he was content to have nothing to do with her, and made scant effort at reconciliation with her, for too long a period to lay the blame at her feet alone.

No obligation for deceased to provide dwelling for adult child or third parties

Mr Turch had argued that the estate should provide him with the ability to buy a dwelling large enough for himself, his partner and his paternal uncle.

In response, the court pointed out that under the Succession Act, a deceased person is not generally obliged to provide an independent-living, adult claimant with a dwelling or the means to support a third party.

The court took the view that the long years that had passed between Ms Luca’s divorce from her husband in 1988 and her death in 2016 provided no foundation for finding that she owed a moral obligation to provide for her ex-husband’s brother.

Son not excluded from mother’s estate

It was significant that Mr Turch was not excluded from his mother’s estate. By not making a will, Ms Luca had treated her three children equally.

She had met with a solicitor, whose handwritten notes demonstrated that she had considered making a will and dividing her estate three ways between her children.

By not making a will, Ms Luca essentially achieved the same result. The court concluded: “…one is left with the impression that the deceased perhaps died intestate by design.”

Legal costs and apportionment of estate between three siblings

The court found it was not possible to conclude that Mr Turch had been left without “adequate provision” because he was due to receive over $300,000 from his mother’s estate.

Any further provision for him would diminish the share of his older brother, who was not well off, or his sister, who was her mother’s favourite child and had nursed her in her dying days.

In what may serve as a useful warning to those who might be tempted to make an extravagant claim on a deceased estate, the court decided that Mr Turch should pay his own legal costs, as well as those of his sister, to be deducted from his share of the estate.

The court could find no justification for imposing the costs of Mr Turch’s unsuccessful litigation upon his siblings.

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.

Latest from Stacks

chat button

Fill out this form and one of our local law professionals will be in contact

By submitting this form you agree to the terms of our Privacy policy