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Case Study: Family Provision – Court considers a claim for provision by grandchildren

Curtis v Curtis [2023] NSWSC 1164

This case involves two brothers, Blake, and Brock, who were in their 30s. Their grandfather, Barry Curtis, passed away in January 2022, leaving a will that made no provision for them. The only beneficiary under the will was the deceased’s son, Rodney.

Blake and Brock believe they should have been provided for and applied for family provision orders pursuant to the Succession Act 2006 (NSW). The defendant was the executor, Barry’s brother.

The court had to consider three main questions:

  1. Were Blake and Brock, as grandchildren eligible to make a claim?
  2. If yes, were there factors warranting (special circumstances) the making of their claim based on the circumstances?
  3. Did the deceased’s will adequately provide for Blake and Brock’s maintenance, education, or advancement in life?

Eligibility

In order to be eligible to make a claim, Blake and Brock as grandchildren needed to show they were dependent at least partially on the deceased during their lifetimes

The deceased had two sons, Darran and Rodney. Blake and Brock were the children of Darran and Victoria Mathew who separated in 1992. Darran passed way in 2008 from bowel cancer.

Blake and Brock described their close relationship with their grandfather and instances where they stayed with him, especially during their father’s illness and after his passing at which times their grandfather provided care akin to that which a parent would provide. They highlighted their dependence on their grandfather during certain periods of their lives.

The defendant, Rodney, who was the executor of the will, argued that Blake and Brock’s relationships with the deceased weren’t significant enough to be eligible to make a claim, that is that they were not dependent upon the deceased nor were there factors warranting.

The court reviewed the evidence provided by both parties and found that Blake and Brock were indeed partly dependent on their grandfather during specific times in their lives, making them eligible to make a claim. The Court found Rodney’s evidence was an attempt to minimise Blake and Brock’s relationship with the deceased and was designed to maximise the benefit to himself out of the estate.

Factors Warranting

As grandchildren of the deceased, unlike children or spouses the plaintiffs needed to show that there were factors warranting the making of their claim in addition to being eligible persons. Factors warranting will usually be present when there was something special about the relationship which placed a moral obligation on the deceased to make provision.

The defendant argued that there were strong reasons against the claims, arguing that the relationship between Brock and Blake and their grandfather was nothing more than a typical grandparent relationship. The Court did not agreed, finding that the level of dependency and the quality of the relationship with the deceased were substantial factors.

In addition, the plaintiffs gave evidence (which the Court accepted) of conversations with their grandfather to the effect that Rodney promised him that he would look after them after he passed away.

Adequate provision

In deciding what would be adequate provision for the plaintiffs, the Court took into account Brock and Blake’s moderate income and living situations, as well as the fact that Brock suffered from PTSD which may impact his future earning capacity. Neither Brock nor Blake owned any property. Rodney’s financial position was considerably better, owning a property worth $1.4million and he had no dependents.

The Court awarded the plaintiffs each a 20 percent share of the estate, with the Rodney to receiving the remainder.

In summary, this is case is a good example of a grandchild’s eligibility to make a family provision claim, as well as factors warranting a claim.

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