Man successfully claims 45% of his friend’s estate

20 August 2020
Contesting Wills

When an individual dies in the state of New South Wales and they have no will, the law says that the “rules of intestacy” will apply.  This means that the estate will be distributed to the deceased’s living family members in the order set out by the law.

However, in certain circumstances, the law allows the Court to step in and alter the way in which the estate may be distributed, and by how much. This type of order is called a “Family Provision Order”, and the Court can only do this after it has established  that the person making the application is (1) an “eligible person”, and (2) there are circumstances that allow for such an order to be made.

In the recent decision of Justice Hallen in Rakovich v Marszalek [2020] NSWSC 589, the Court made a family provision order for the deceased’s friend despite him not being entitled to any part of the estate under the rules of intestacy. The basis of this decision was that the friend was “dependent” on the deceased and they had a close and personal relationship at the time of death.

The proceedings related to a Mr Horst Marszalek who died without a will. Horst had never been married and had no children at the time of his death. The rules of intestacy applied in this matter and Horst’s family members were entitled to the whole of the estate.

Unfortunately, what the rules of intestacy failed to consider was that at the time of his death, Horst was living with a close friend (George). George and Horst had been living together for nearly 6 years and maintained a long-standing relationship for more than 30 years. Because George was not a family member, George was not entitled to receive a share of the estate despite his close relationship with Horst.

In the State of New South Wales, the Succession Act 2006 (NSW) allows for an individual like George to challenge the rules of intestacy on the basis that he is a person who was either:

  1. dependent on and lived with the deceased at the time of death (Section 57(1)(e)); or
  2. he was living in a close personal relationship with the deceased at the time of death (Section 57(1)(f)).

In this matter, the Court accepted George’s Family Provision Application on the basis that he was dependent on the deceased, and they lived together.

In his judgement, Justice Hallen J said that at [243]:

“The deceased provided George with advice, accommodation and, at times, money by way of loan. He was a surrogate father, or as he described himself, a “stepfather”. These matters, amongst others, confirm George’s evidence about the depth of their relationship. Over the more than 30 year relationship, they developed an affectionate, emotional, and an enduring, relationship, which only came to an end with the death of the deceased. They lived together for the last six years of the deceased’s life, which also demonstrates a permanency and continuity of their friendship.”

In determining how much provision should be made, the Court considered the “financial position of George, the size and nature of the deceased’s estate, the relationship between George and the deceased, and the competing moral, and financial, claims of the beneficiaries, as well as the financial resources or needs of all of them”. [247]

The Court held that George should be given 45% of the Horst’s estate, which had a financial value in the sum of $635,000.

If a close family member or friend has recently passed away without leaving a will, you should contact our experienced Wills & Estate Lawyers who will be able to assist you with any family provision claim you may be entitled to.    

Important Disclaimer: The material contained in this publication is of general nature only. It is not, nor is it intended to be legal advice.

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