Supreme Court of New South Wales | Young AJA | 24 November 2015
Family Provision Claim – Nieces of Deceased – Factors Warranting Making of an Application – Claim Dismissed
The two applicants/plaintiffs were the nieces of the deceased who brought a claim in time from the estate of the deceased. The gross sum of the estate was not insignificant with a sum of $4.63 million.
The applicants contended they were eligible persons pursuant to section 57(1)(e) of the Succession Act 2006 (NSW) that:
(e) a person:
(i) who was, at any particular time, wholly or partly dependent on the deceased person, and
(ii) who is a grandchild of the deceased person or was, at that particular time or at any other time, a member of the household of which the deceased person was a member,
The applicants contended that they shared a household with the deceased between 1946 and 1950.
I note section 59 of the Succession Act requires consideration for claims of eligibility as a result of, inter alia, paragraph s 57(e) to have factors warrant the making of the application.
In turning to evaluating the case, his honour raised 4 issues for determination:
- Were the plaintiffs and the testator part of the same household between 1946 and 1950?
- Were the plaintiffs dependent on the testator at any time (particularly 1946 to 1950)?
- Are there factors warranting the plaintiffs making an application under the Act?
- If the previous questions are answered favourably to the plaintiffs, what orders should be made on their application?
What is a Household?
His honour adopted a broad definition of household – one not synonymous with a house. A household is a”flexible, bearable and some extent imminent. Among other things, living in the same household connotes some element of frequency of contact, some element of mutual support and some element of community of resources” . However, one must still look for elements of permanency and mutual support.
In the current application, the applicants shared the house with the deceased between the age of 0 and 5 and 3 and 7 respectively. Therefore, the relationship is not one where the applicants could contribute – however, evidence was put before the court that the deceased did contribute to the care and support of the applicants.
His honour was satisfied that the applicants were eligible persons and that the Act does not preclude prospective applicants from being members of a household on the basis of age or state of health.
Dependency is both financial dependence and a degree of emotional dependence between the parties.
The applicants lead evidence that, by implication, the deceased contributed monies to the household at the time. His honour was not satisfied that the evidence established such as the applicants were infants and, further, if it was accepted that contributions were made, they would not have been large nor sufficient to cover the gratuitous board.
In considering emotional dependence, the evidence of the applicants was discounted as it was (1) evidence from a young age; (2) from over 70 years ago, and (3) uncorroborated.
His honour was not satisfied on the balance of probabilities that there was any dependence on the testator by the applicants between 1946 and 1950 – the only relevant times.
In the absence of such, his honour concluded that the applicants were not eligible persons.
Factors Warranting the Making of an Application
The Court followed Mclelland J in Re Fulop (1987) 8 NSWLR 679 in that the factors referred to are those factors which render the applicant an eligible person give him (or her) the status of a person who would be generally regarded as a natural object of testamentary recognition by a deceased.
In answering such, his honour formulated the question as follows at :
whether the plaintiffs are sufficiently close to the prime source of eligible persons that members of the community would consider that the testator owed them an obligation to consider their situation when making his will. In other words, are they to be treated in much the same category as children?
In the present case, his honour was not satisfied that the evidence of the applicants was sufficient to establish such a relationship. In fact, the evidence produced suggested otherwise.
Accordingly, it was concluded that there were no factors warranting the making of the application.
What Order Should be Made?
Notwithstanding the negative answer to the prerequisite, his honour considered an appropriate order for provision.
His honour noted the following:
- Both applicants have a house;
- Both applicants have an income;
- Both applicants are not in good health;
- Competing claims;
- The size of the estate.
In these circumstances, his honour in obiter,stated an appropriate cash legacy in the circumstances would be $100,00 to meet medical bills, take the odd holiday and to have a “nest egg in reserve.” 
The plaintiffs’summons were dismissed.
- The age or infirmity of an applicant being a member of the same household is not a bar to eligibility.
- Being a member of a household has a far more fluid meaning than being a member of the same house.
- Dependency is both financial and emotional dependency.
- Factors warranting an application are those factors which would make the applicant considered an individual owed a testamentary bounty.
- Orders for provision are subjective balancing the need of the applicant against the size of the estate and other competing beneficiaries.
Read the Full Case: Miller v Ryan; Payne v Ryan  NSWSC 1713
Ari Katsoulas is a Sydney Barrister practising in Will Disputes, Contested Wills and Family Provision Claims.