Failed family provision claim by a dependent friend

Posted on Jul 28, 2020 by Janine Wilson

You can be eligible to make a claim from a deceased estate if you were wholly or partly dependent on the deceased person and at the same time you were a member of the deceased person’s household. If you are within that category, you do not need to be a family member in order to bring a claim.


That doesn’t mean its an easy claim to bring! Even thought you might be eligible, you still need to satisfy the Court that there are special factors that warrant the making of the application.


This month, the Supreme Court of NSW delivered a judgment rejecting the claim of a person who had lived in the deceased’s house for over 12 years. The Plaintiff was unemployed and for the majority of that 12 years, the Plaintiff was financially dependent on the deceased, paying no rent or making any contribution to living expenses.


The Plaintiff befriended the older Dr Garrett who lived on his own. Initially, the Plaintiff moved into Dr Garrett’s house on a temporary basis. Dr Garrett enjoyed the companionship and over time, the Plaintiff’s residence continued as Dr Garrett’s health declined.


Over the 12 years, the Plaintiff borrowed a significant amount of money from Dr Garrett and obtained control of Dr Garrett’s bank account and credit card. As Dr Garratt’s health worsened, the Plaintiff provided some level of care to Dr Garrett.


The Court acknowledged that the Plaintiff was within the category of people who were eligible to make a claim on Dr Garrett’s estate. However, the Court found that the “factors” required by the legislation must be such that would give the Plaintiff the status of a person would be ordinarily regarded as a “natural object of testamentary recognition by the deceased person”.


In this case, the Court found that whether there were sufficient factors needed to be considered as at the date of death. In this case, the companionship, care and assistance given by the Plaintiff in the preceding years were overshadowed by more recent factors including the details of the very significant money and benefits already received by the Plaintiff from Dr Garrett over many years. Additionally, the Court found that the Plaintiff had unfairly tried to misuse his position of influence over Mr Garrett in an attempt to obtain the whole of Mr Garrett’s house when the Plaintiff knew that Mr Garrett had reduced mental capacity in hi slater years and was vulnerable.


Dr Garrett had already made a modest provision for the Plaintiff in his will and the Court found that there were no factors warranting any further provision being made. The Plaintiff was ordered to give up possession of the house to the executors and ordered to pay the executors legal costs of the proceedings.