Family Provision Application considered by the Supreme Court of New South Wales

By Lucille Moala • In Estate Planning, Estates, Litigation, WillsComments Off on Family Provision Application considered by the Supreme Court of New South Wales

The recent case of Sitki v Sitki; Sitki v Aksoy [2016] NSWSC 1396 (Sitki) provides an interesting insight into the matters the Court may take into account when determining Family Provision Applications.

The case was heard in New South Wales. The law in New South Wales provides that a spouse, child or dependant of a deceased person are entitled to make a Family Provision Application to the Court after the deceased person’s death. The person making the Application must satisfy the court that adequate provision was not made to them from the Estate of the deceased for their proper maintenance and support.

Mr Sitki had passed away leaving a sizeable estate consisting of properties in Australia and Cyprus. His last Will granted a life interest in his Australian properties to his third wife Mrs Sitki to whom he had been married since 1984. He also left his Cyprus properties to his daughter, Hatice, and his Australian properties to his other daughter, Ilay.

As it turned out, the father’s Will had no legal basis in Cyprus so Hatice did not, in fact, inherit the Cyprus properties. Instead, these properties were divided equally between Mrs Sitki, Hatice and Ilay under the relevant law in Cyprus.

Both Mrs Sitki and Hatice brought Family Provision Applications against Mr Sitki’s Estate after his death alleging that their proper maintenance and support had not been suitably provided for.

The Court agreed that the life interests granted to Mrs Sitki in respect to the Australian properties did not amount to adequate provision for her proper maintenance and support. After hearing the evidence of Mrs Sitki, the court determined that Mrs Sitki should receive the title to one of the Australian properties outright and that a fund of approximately $1 Million should be established to cover her future costs and contingencies (with the exact amount of the fund to be properly determined at a later date).

Although Hatice had put some evidence before the court as to her need for proper maintenance and support, it was not enough to prove that adequate provision had not been made for her under her father’s Will. As a result, the Court held that it would not make any further provision in Hatice’s favour.

The Court acknowledged that this would result in Ilay receiving considerably more from their father’s estate than Hatice. However it was noted that it is not the Court’s role to provide a “fair” disposition. Rather, the Court’s role is to make an adequate provision for the proper maintenance and support of the applicant and to go no further than that.

A significant factor in the Court’s decision was the fact that the father had made numerous Wills using lawyers over his lifetime. The lawyer could prove through various notes and records that the father had given careful consideration to the distribution of his estate and that the generous distribution to Ilay was intentional in light of the circumstances of his relationship with each of his daughters.

If you think that someone may challenge your Estate after your death through a Family Provision Application, it is important that you seek legal advice. Our experienced Estate Planning team will be able to consider your circumstances and provide you with the appropriate advice to help minimise the risk of this type of challenge to your estate, or at least to reduce the chance of an application being successful.

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