A Look at Alexiou v Alexiou [2024] NSWSC 1340
In New South Wales, Section 57 of the Succession Act 2006 (NSW) (“the Act”) allows certain eligible people to make a Family Provision Claim if they believe they were inadequately provided for under a deceased person’s will.
Who is an eligible person to make Family Provision Claim in NSW?
Eligible persons to make a family provision claim in NSW include:
- The spouse or de facto partner of the deceased;
- A child of the deceased;
- A former spouse the deceased;
- A grandchild of the deceased who was wholly or partly dependent on the deceased;
- A person in a close personal relationship with the deceased at the time of death.
Family Provision Claims in NSW: Eligibility and Estrangement
Pursuant to Section 57(1)(c) of the Act, a child is considered an eligible person for family provision. In determining whether a child who was estranged from the Deceased is eligible for provision, the court considers the following:
- The size and nature of the deceased’s estate;
- The child’s financial needs and personal circumstances, including their health, income and other dependents;
- The cause and context of the estrangement and the role each party may have played;
- The deceased’s moral obligation towards the estranged child, particularly if the child faces significant financial need; and
- Competing claims from other beneficiaries, including other children, spouses or dependents of the deceased.
Alexiou v Alexiou [2024] NSWSC 1340: A Case Study
The case of Alexiou v Alexiou is a recent example where an estranged child sought provision from a deceased parent’s estate. This case highlights the complex factors the court considers in cases involving estrangement and provides insight into how the court balances estrangement with other factors, such as financial need and moral duty.
Background of the Case
In Alexiou v Alexiou, the plaintiff, Arthur Alexiou (“the Plaintiff”), was an estranged adult child of the deceased, Con Alexiou (“the Deceased”). The Plaintiff was excluded from the Deceased’s last Will as a result of their estranged relationship and the Plaintiff’s bankruptcy status. The Deceased’s Will primarily benefited the Deceased’s grandchildren (the Plaintiff’s sons) and the Deceased’s daughter.
The Court’s Decision
The court found that, irrespective of the Deceased’s clear intention to exclude the Plaintiff, the Deceased was morally obliged to provide for the Plaintiff in some capacity. Justice Lindsay ordered a modest provision of $300,000 to the Plaintiff, with a deduction in the sum of $130,000, being the sum the Plaintiff owed to the estate to cover previous costs and liabilities.
Key Takeaways from Alexiou v Alexiou
The case of Alexiou v Alexiou provides several important insights into family provision claims, particularly in situations involving estranged family members. The key takeaways relating to estrangement and the moral duty associated with financial need are as follows:
- Estrangement is not a Bar to Claims: The Supreme Court in Alexiou v Alexiou reaffirmed that estrangement, in itself, does not prevent a family member from making a family provision claim. Despite the fact that the Deceased had expressly excluded the Plaintiff from his will, the court held that being estranged from the Deceased did not disqualify the Plaintiff from seeking provision.
- Financial Need as a matter of Moral Duty: The Plaintiff’s financial need played a significant role in the Court’s decision to make provision in his favour. The Court observed that the Plaintiff was in challenging financial circumstances with limited earning capacity and minimal assets, which prompted the Deceased’s moral duty to provide for him. The case emphasises the Court prioritises a fair consideration of financial need and recognises that estrangement does not necessarily negate the Deceased’s moral duty.
- Estrangement’s Role in Limiting Provision: The Court highlighted that estrangement alone does not automatically disqualify an applicant from receiving provision from a Deceased person’s estate. In retrospect, the Court found that partial financial need and the circumstances surrounding the estrangement still allowed for a modest provision.
Conclusion
The case of Alexiou v Alexiou serves as an insightful example of how the NSW Supreme Court approaches family provision claims from estranged children. This case highlights the court’s balancing of testamentary intent, with the moral and financial needs of disinherited family members, even in the presence of estrangement. While estrangement can affect the size and likelihood of any beneficial interest in a deceased estate, it does not prevent an eligible child from making a claim.
If you’re considering a family provision claim as an estranged child, it’s essential to seek legal advice. Our solicitors at Willis & Bowring can assess the strength of your claim, help gather relevant evidence, and provide guidance on how the court is likely to view your circumstances.
Written by Aimee Collantes – Wills & Estates/Probate Solicitor