Which case won?

The case for the daughter’s siblings, G and C
  • In determining whether to make a family provision order, the court is entitled to consider various matters referenced in the legislation, including evidence of our father’s testamentary intentions, the nature of his relationship with our sister and her conduct.
  • Our father was very clear in his will what his testamentary intentions were. His will stated: “I DECLARE that I have not made any provision in this my Will, other than [$100] for my daughter [B] and/or her children because: …” and then he went on to list the many reasons why. These reasons included that B would physically assault him by throwing fruit and vegetables at him, that B damaged the family home to prevent its sale, that B threatened him with physical harm, resulting in him obtaining an apprehended violence order against her, and that B displayed a lack of respect for him, which caused him great anxiety and stress during his life.
  • After our father executed his will, he said to one of us: “I am only leaving [B] the sum of $100 because of her terrible abusive treatment of me and because she caused me financial ruin.”
  • For the last 12 years of his life, our father and sister were completely estranged. B’s conduct caused this estrangement. As our father’s will outlines, she engaged in clear acts of hostility and harassment towards him. We also witnessed this during his lifetime. Our sister used to throw things at him and there were occasions when one of us was required to intervene to stop the assault from escalating.
  • There were also occasions when one of us would return home to find our father sitting in his car in front of the house, feeling too intimidated to go inside because he feared another assault by our sister.
  • Given our father’s clear testamentary intentions, B’s appalling conduct towards him and the long-term estrangement that she caused, the court should reject B’s application for a family provision order.
The case for the daughter, B
  • My father had a moral obligation to provide for all of his children, including me, particularly as I have limited financial means, unlike my siblings.
  • My conduct towards my father has been completely mischaracterised by my father and siblings.
  • It is true that there was tension between myself and my father, but the reason for this tension was that my father was extremely angry with me for what he saw as me siding with my mother in their family law proceedings. This unjustified perception influenced the drafting of his will, so that his mindset was not based in reality. His testamentary statements should be read through the prism of enmity with which he viewed me.
  • My father was a violent and abusive parent who consumed excessive quantities of alcohol, particularly his homemade wine, Tsiporo. He was drunk three to four times per week, which made him aggressive towards my mother and towards me when I would try to intervene.
  • I admit that I may have thrown fruit in the presence of my father, but only on the floor, not at him.
  • Although I left the family home under the terms of an AVO in 2007, it had been a toxic environment where I feared for my physical safety and wellbeing. It is my father who caused our estrangement.
  • As a result of my father’s conduct, I have developed a number of health problems, including high blood pressure, stress, depression, dermatitis and eczema.
  • My father had a moral duty to provide for me. This duty is not impacted by the estrangement that he caused, nor by the clauses in his will that were written in anger over my concern for my mother’s wellbeing. The court should therefore exercise its discretion to grant my application for a family provision order.

So, which case won?

Cast your judgment below to find out
Case A Case B

Case A won. You were right!

How people voted
case a68%
case b32%

Expert commentary on the court's decision

Hugh McAulay
Hugh McAulayManaging Director
“Where the deceased and the applicant are estranged and there is overt hostility, the court will carefully consider which side was responsible for the hostility.”
Court rejects daughter’s application for family provision order

In Georgopoulos v Tsiokanis & Anor [2022] NSWSC 563, the Supreme Court of NSW found in favour of the deceased’s younger children, George and Constantina, rejecting the application by the eldest child, Barbara, for a family provision order.  

Court has discretion whether to make family provision order

Under the NSW Succession Act 2006, when an eligible person applies to the court for a family provision order, the court must determine whether the applicant has been left with inadequate  provision for his or her proper maintenance, education or advancement in life in relation to the estate of the deceased.

In turning its mind to this question, the court has discretion as to whether to make an order and, if so, the amount of the order to be made.

Section 60(2) of the Act lists 16 matters that the court may, but is not required to, consider when exercising this discretion. The weight given to any particular matter will depend upon the facts of the particular case.

Included amongst the list of 16 matters are any evidence of the testamentary intentions of the deceased person, the nature of the relationship between the applicant and the deceased person, and the character and conduct of the applicant.

Deceased’s statements must be subject to scrutiny like any other evidence

The court recognised that statements by the deceased as to testamentary intention are admissible.

However, it also emphasised that the court is not required to accept the truth or accuracy of those statements unquestioningly, particularly if they are denied by the applicant.

The court noted that the truth or accuracy of the deceased’s statements cannot be tested by cross-examination of the deceased. The deceased’s evidence must be subject to a degree of consideration and scrutiny like any other evidence.

Court prefers deceased’s evidence over daughter’s evidence

The court carefully considered the wishes of the deceased and, as part of that, his evidence regarding his relationship with Barbara. In this case, the court preferred the deceased’s evidence over that of Barbara’s evidence, as it was supported by the evidence of George and Constantina.

George and Constantina were found to be truthful witnesses, however the court did not accept Barbara as a credible witness.

Of Barbara, the court said: 

Overall, I was not impressed with the Plaintiff [Barbara]… I am satisfied that the Plaintiff made allegations that I do not accept as wholly truthful. The most significant allegations related to the deceased being a violent and abusive parent who consumed excessive quantities of alcohol which made him aggressive and abusive… In all the circumstances, I am satisfied that the Plaintiff made these serious allegations against the deceased in order to provide a justification for her conduct towards him and to explain the parts of the reasons given by the deceased in the Will… for excluding her from provision out of his estate. 

Can estranged family members contest a will?

Estrangement between a deceased person and the maker of a family provision claim is not necessarily an impediment to granting that claim. Indeed, a number of other cases were referenced in this matter in which provision was granted despite a level of estrangement.

Estrangement, however, is a factor that is taken into account in all the circumstances of a particular case.

However, where the deceased and the applicant are estranged and there is overt hostility, the court will carefully consider which side was responsible for the hostility.

In ruling against Barbara’s application for a family provision order, the court made the following remarks.

[Barbara’s] conduct before, and after, the death of the deceased may be regarded as reprehensible… There are cases in which an estrangement, taken with other factors, which have been mentioned, is such that the deceased is entitled, without interference by the Court, to make little, if any, provision for the estranged child. This is particularly so, if there is overt hostility and violence on the part of the applicant, where the period of estrangement is long, where the estate is not large, and where there are competing claims on the bounty of the deceased. Regrettably, this is such a case. 

Importance of considering potential costs of family provision claim

As the court noted, judges have repeatedly made it clear in the context of family provision claims that the parties should not assume costs will automatically be paid out of the deceased’s estate.

The court characterised this case as: 

…another depressing example of an unfortunate legal dispute, waged between the living over the property of the dead, and the costly, unrelenting battle between siblings over the estate of one of their parents… It is the parties who must bear the sole responsibility for the costs that have been incurred, as their lawyers, and the Court, made every effort, before the hearing, to end the attritional litigation between them. They failed to recognise that their approach is destructive, expensive, and damaging. 

Given the modest size of the estate and the court estimated the costs of the proceedings to be $116,520, nearly one third of the size of the total estate in dispute, this is not an insignificant point.

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