Which case won?

The case for the granddaughter
  • I am entitled to a family provision order amounting to the whole of my grandmother’s estate.
  • My mother was my grandmother’s only child and I am my grandmother’s only grandchild. After my mother’s death, whenever my grandmother and I spent time together, she treated me as if I was her daughter. She was the closest thing to a mother figure to me.
  • My grandmother used to say to me: “One day all of this will be yours. With your mother gone, you are all I have.” She even made me the primary beneficiary of her 2009 will.
  • I was also partially dependent on my grandmother at various times in her lifetime.
  • In 2001, when my father caught chicken pox, my grandmother came to Brisbane from Sydney to take care of me.
  • Between 2000 and 2003 I travelled to Sydney on three or four occasions to stay with my grandmother for a month at a time. My grandmother would look after me and we would garden, play music, go to the park, cook together and go to the shops. My grandmother also bought me a pet rabbit and several goldfish.
  • I wasn’t able to see my grandmother after 2003 because she and my father weren’t speaking then and my father forbade me from seeing her.
  • However, my grandmother and I still maintained a close relationship through letters, cards at Christmas and Easter, and regularly speaking on the telephone about once every second month.
  • My grandmother also sent me regular food packages with biscuits, cakes and clothing three to four times a year. She also sent money orders, usually of $300, about three to four times a year.
  • As a grandchild who was like a daughter to my grandmother and partially dependent on her, I am eligible to make a family provision claim against my grandmother’s estate. The court should recognise this.
The case for the estate
  • The granddaughter is not eligible to make a claim against her grandmother’s estate because she was never at any time even partly dependent on her grandmother.
  • Infrequent and short stays with her grandmother do not make her dependent in the ordinary sense of the word. Even if she was dependent, she was merely minimally dependent, not “partly dependent” as required by law in order to challenge the estate.
  • The granddaughter claims that she and her grandmother sent letters and cards back and forth and spoke on the phone. However, no evidence of this was produced.
  • Similarly, no evidence was produced regarding food packages and money orders being sent to the granddaughter by her grandmother.
  • The granddaughter says that she couldn’t see her grandmother because her father forbade her from doing so. However, even if her father’s influence was significant, there were still years when she was an adult and could have contacted her grandmother. She didn’t do so.
  • Since the granddaughter was not even partially dependent on her grandmother, she is not eligible to make a claim against her grandmother’s estate. Her case should be dismissed.

So, which case won?

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Expert commentary on the court's decision

“This case underscores the importance of getting legal advice about your rights to challenge a will, including prudently considering any advice about the commercial practicality of taking a particular course of action.”
Supreme Court decides against granddaughter

In the case of Chisak v Presot [2021] NSWSC 597, the Supreme Court of NSW concluded that the granddaughter, Ivy Chisak, was never wholly or partially dependent on her grandmother.  

Accordingly, she was not eligible to challenge her grandmother’s estate and the court dismissed her case.  

Granddaughter required to establish dependence on grandmother

Section 57(1) of the NSW Succession Act 2006 provides that “eligible persons” may apply to the court for a family provision order in respect of the estate of a deceased person.  

Under section 57(1)(e), as a grandchild of the deceased, Ms Chisak would be an eligible person if she was “at any particular time wholly or partly dependent on the deceased”. 

Granddaughter not dependent on grandmother

The court noted that there is vagueness as to the meaning of the word “dependency”, but case law has shown that it is a question of fact and that it effectively “involves a degree of reliance on someone else for the total or partial satisfaction of some need.” 

The court accepted that, regardless of any “elasticity” of the term “dependency”, infrequent and short stays with the deceased as a child did not make Ms Chisak dependent on her grandmother in the ordinary sense of the word.  

The court held that, in order for a grandchild to qualify as a dependant, the gifts or benefits provided by the deceased person must be of such regularity and significance that one can say that the deceased person had clearly assumed a continuing responsibility for the grandchild’s maintenance, education or advancement in life.  

General principles in relation to family provision claim by grandchild

The court also referenced several general principles in relation to family provision claims by a grandchild, including that: 

(a) As a general rule, a grandparent does not have a responsibility to make provision for a grandchild. Rather, that obligation rests on the parent of the grandchild. 

(b) Where a grandchild has lost his, or her, parents at an early age, or when he, or she, has been taken in by the grandparent in circumstances where the grandparent adopts the role of parent, these factors would give rise to a claim by a grandchild to be provided for out of the estate of the deceased grandparent. The fact that the grandchild resided with one, or more, of his, or her, grandparents is a significant factor. Even then, it should be demonstrated that the deceased had come to assume, for some significant time in the grandchild’s life, a position more akin to that of a parent than a grandparent, with direct responsibility for the grandchild’s support and welfare, or else that the deceased has undertaken a continuing and substantial responsibility to support the applicant grandchild financially or emotionally. 

(c) The mere fact of a family relationship between grandparent and grandchild does not, of itself, establish any obligation to provide for the grandchild upon the death of the grandparent. A moral obligation may be created in a particular case by reason, for example, of the care and affection provided by a grandchild to his, or her, grandparent. 

(d) Generosity by the grandparent to the grandchild, including contribution to the education of the child, does not convert the grandparental relationship into one of obligation to provide for the grandchild upon the death of the grandparent. It has been said that a pattern of significant generosity by a grandparent, including contributions to education, does not convert the grandparental relationship into one of obligation to the recipients, as distinct from one of voluntary support, generosity and indulgence. 

(e) The fact that the deceased occasionally, or even frequently, made gifts to, or for, the benefit of the grandchild does not, in itself, make the grandchild wholly, or partially, dependent on the deceased for the purposes of the Act. 

Twenty per cent of estate sufficient provision for granddaughter

The court concluded that even if Ivy had been successful in proving dependency upon her grandmother, they would not have granted her greater provision than the 20% of the estate already left to her by the 2017 will.  

This conclusion was reached having regard to the strength of Ms Chisak’s relationship with her grandmother, the strength of the grandmother’s relationship with her friends, the size of the estate and the court’s desire not to interfere with a person’s testamentary freedom. 

Legal costs exceed amount left by grandmother to granddaughter

Significantly, in separate costs proceedings (Chisak v Presot (No 2) [2021] NSWSC 754), the court ordered that Ms Chisak would be responsible for paying the whole of her legal costs, as well as 40% of the estate’s legal costs.  

On that basis, Ms Chisak’s legal costs came to $232,000, being $72,000 towards the estate’s $180,000 in legal costs and $160,000 for her own legal costs.  

Had Ms Chisak not challenged the 2017 will, she would have received approximately $180,000 from the estate. But because her legal costs exceeded that value, and based upon the outcome of the case combined with the costs disclosed to the court, she would have ended up with a debt of $50,000 in legal fees instead.

The foolhardiness of this litigation was summed up well by the court: 

It is not difficult to appreciate, when one reads what follows, how expensive, and self-destructive, this litigation must be to the financial health of the parties, particularly [Ms. Chisak]. However, every suggestion to resolve the proceedings, made to the legal representatives of the parties, both before, and during, the hearing, appears to have fallen on the deaf ears of the parties. In saying that, I do not doubt that the legal representatives appreciated, and explained to the party or parties represented, the commercial folly of the litigation. The matter, however, was not able to be resolved… 

This case underscores the importance of getting legal advice about your rights to challenge a will, including prudently considering any advice about the commercial practicality of taking a particular course of action.

For further information please see Contesting a will in NSW – the horror story edition.

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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