Australia: Did his nephew deserve a share of the deceased estate? Which case won?

Last Updated: 10 July 2019
Article by Zohra Ali

The Facts

Man emigrates to Australia from Hong Kong and sets up successful businesses

A man emigrated to Australia from Hong Kong in 1941, when he was in his late teens.

He established himself in Sydney, married, adopted two children and, due to his hardworking nature and business acumen, went on to establish a number of successful businesses.

Man helps numerous relatives emigrate to Australia

As the senior member of the family in Australia, the man took his family responsibilities very seriously. Over the course of many years, he arranged for over a dozen members of his extended family and his wife's extended family to emigrate to Australia.

These relatives were provided with a landing point and a safe haven in Australia. Several of them lived with the man and his wife for a number of years.

The man generously provided financial assistance to these relatives and otherwise helped them by employing them within his businesses.

Seven wills made during the course of a lifetime

The man had made seven wills in his life. In the final will he made provision for his two adopted children, his second wife and her daughter.

No provision was made in any of the man's wills for any of the extended family members whom he had helped to emigrate to Australia.

Nephew makes family provision claim following man's death

When the man died in 2013 at the age of 89, one of these extended family members, a nephew, sought to challenge the will and made an application to the Supreme Court of NSW, seeking orders that provision also be made for him under the will.

This application was opposed by the man's son and brother, who were the executors of the estate.

In NSW, the law allows a person to make a family provision application if they are an "eligible person", if there are factors which warrant the making of the application and if it can be shown that adequate provision for the person has not been made in the will.

Both sides agreed that the nephew was an "eligible person" and that no provision had been made for him in the will, so it was for the court to determine whether there were factors warranting an order for provision being made in favour of the nephew.

case a - The case for the nephew

case b - The case for the son

  • My relationship with my uncle was much closer than that of uncle and nephew. We were more like father and son. I lived with my uncle and aunt for a decade from the age of nine. They practically raised me.
  • I had very limited contact with my own parents as I was growing up, so the relationship I had with my uncle became a substitute for the relationship with my natural father.
  • My uncle provided me with financial assistance, accommodation and employment well into my adult life. I depended on him.
  • When I got married, my uncle was listed on the wedding invitation in the place of the father of the groom and he assumed that role at my wedding.
  • There was a close bond between me and my uncle throughout his life. When he was diagnosed with leukaemia, I visited him and kept in touch with him by phone.
  • I have debts which I need to attend to. It is true that I have not always made wise financial decisions in my life, but I nevertheless contend that "a just father's moral duty is to assist the lame ducks amongst his offspring". The court should allocate a share of my uncle's estate to me.
  • It is not true that my father and my cousin were like father and son. My cousin called him "uncle", not "dad". When my sister and I were growing up, we never regarded our cousin as our sibling.
  • The bond between my father and my cousin was in no way as close as the bond my father had with my sister and with me.
  • My father helped many relatives emigrate to Australia. Because he was very generous, he took responsibility for all of them. My cousin was merely one of many recipients of my father's generosity.
  • My father said of my cousin that he "had a bad habit of losing money he cannot afford to lose", "spends too much money on fancy clothes", "gambles too much and never goes to work" and is a "good for nothing".
  • My cousin and my father were not particularly close during the last years and months of my father's life. When my father was diagnosed with leukaemia the year before he died, he asked me to convey this news to four people. My cousin was not one of them.
  • While my cousin maintains that he kept in touch by phone when my father was ill during the last months of his life, an analysis of my cousin's phone records shows that he never rang my father.
  • My father made seven wills during his life and did not provide for my cousin in any of them. He had no intention of leaving part of his estate to this nephew and the court should reject my cousin's family provision application.

So, which case won?

Cast your judgment below to find out

Zohra Ali
Will disputes
Stacks Law Firm

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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