‘Homeless’ Man Inherits Substantial Sum After Successful Family Provision Challenge

Background

It was recently reported that a man, described as ‘effectively homeless’, had been awarded $550,000 from the estate of a woman who died without making a Will, after he made a claim for ‘family provision’.

The man first met the woman, who was married at the time, in 1979 and had a three-way relationship with her and her then husband that lasted six months. They met again in 2012, by chance, when both had lost their partners and she had been diagnosed with cancer. He was effectively homeless and she, despite owning a number of properties, lived in a rundown motel room in Manly, relying on rent for income. She had refused to go into a nursing home but was taken to hospital 12 times before she died in 2014, aged 71. On 10 of those occasions the applicant was listed as her emergency contact. Her brother, who lived in Perth, was her only living relative and stood to inherit her entire estate. He defended the claim. The case came before the New South Wales Supreme Court in April 2017.

Key issues

In New South Wales, the Succession Act 2006 outlines a range of persons who are ‘eligible’ to apply to the Court for a family provision order. As well as the expected spouses and children, it includes ‘a person with whom the deceased person was living in a close personal relationship at the time of the deceased person’s death’, with a close personal relationship being defined as one ‘between two adult persons, whether or not related by family, who are living together, one or each of whom provides the other with domestic support and personal care’.

A close personal relationship is clearly open to interpretation. The support and care does not need to be mutual, meaning carers can pursue a family provision claim though they must not be receiving remuneration (‘fee or reward’) for it. It can also be difficult to assess; for example, an executor may dispute the level of domestic support and care delivered to the deceased by the claimant, as indeed the brother did in the case of the ‘homeless’ man.

This case, Estate MPS, deceased (2017), as discussed above, concerned a family provision claim by a man who argued he was in a personal relationship with a woman referred to as MPS. She had died in October 2014 leaving an estate of $2m but was intestate with no spouse, children or parents. Her sole surviving brother became her only (anticipated) beneficiary and administrator of her estate. The claimant was unemployed, lived alone, and was 65 years of age. He suffered mental health problems and had been on a disability pension for several years. MPS, nevertheless, acknowledged the applicant as ‘next of kin’, ‘person to notify’ and ‘nephew’ in many of her hospital records through her last years. The Court was satisfied that MPS considered him as family ‘faults and all’. Noting this, the Court accepted the claimant as an ‘eligible person’.

The Court then considered the definition of ‘close personal relationship’ as it concerned the eligibility of the claim on the estate. The notion of ‘living together’ does not require the existence of one single residence, does not require being a couple and can be by way of ‘a relationship that is close, personal and attended by provision by one or each of them to the other with domestic support and personal care’. His support, for example, included shopping, preparing meals, tidying up, toileting, assisting with attendance at hospital appointments and driving. The Court acknowledged that he generally spent part of each day with MPS.

In defending the claim, MPS’s brother argued the applicant had demonstrated conduct that should mean he was not entitled to any provision, as the care he had provided was inadequate and that his sister had died alone, neglected and in squalor.

The Court, however, while accepting the support and care provided by the applicant was poor, nevertheless also accepted he provided her with domestic support and personal care within the meaning of the Act. Moreover, the care was not for ‘fee or reward’.

The weakness of the applicant’s personality was commented on, but this weakness was not a reason to blame him for the ‘manner of her death which was tragic’ as he himself was a ‘tragic, marginalised person in whose close company she chose to live’. The Court noted that the applicant refused to state his current address, where he claimed to be living almost homeless, as he feared for his life if his address was stated in Court. This was seen as evidence of his mental state.

The Court awarded him a legacy of $550,000, though he had reportedly asked for $1.7m, commenting that there is no ‘mathematical formula able to be applied’ … but … ‘a process of evaluation [which] requires that the Court consults concepts of justice; wisdom; and its perception of community standards of what is right and appropriate’. The Court also expressed concern that he may not be able to manage such a large lump sum and steps were put in place to ensure professional assistance to manage the large sum.

What does it mean?

The Succession Act gives important rights to those who think they have not been adequately provided for in an estate whether the deceased left a Will or not. Not everyone is eligible to make such a claim but it can extend beyond the obvious candidates of spouses and children.

Many people may be unaware that they are entitled to make a family provision claim. To help decide whether you are an eligible person it is important to contact a lawyer experienced in contesting Wills and estates.

Contact our Specialist Will Solicitors

If you are thinking of making a claim on an estate, or considering contesting, making or updating a Will then it is important to seek expert advice as soon as possible. Contact Szabo and Associates, Solicitors, today and speak to one of our specialists. Call us on (02) 9281-5088 or fill in the online contact form.