The Facts
Man dies leaving just $100 dollars to estranged daughter
In October 2019, an 86-year-old man died, leaving behind three children and an estate valued at $368,805.
The deceased had separated from the children’s mother in 2004 and she died in 2012.
For over a decade prior to the deceased’s death, he and his eldest child, B, were completely estranged. This followed B supporting her mother in the family law proceedings between her parents.
The deceased’s 2008 will bequeathed just $100 dollars to B and included a detailed explanation for this rejection.
The man’s will appointed B’s siblings, G and C, as executors of the estate and left the whole of that estate to them in equal shares, save for the $100 left to B.
Estranged daughter seeks family provision order
B commenced proceedings in the Supreme Court of NSW for a family provision order granting her a larger share of her father’s estate.
It was not in dispute that B was an eligible person for the purposes of seeking such an order.
The question before the court was whether an order for provision ought to be made. This was up to the court’s discretion.
Expert commentary on the court's decision
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:
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.
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:
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.