Family Provision is not straightforward

Pascall Comninos, sought a family provision order out of the estate and notional estate of his brother, Stavrianos, pursuant to Ch 3 of the Succession Act 2006 (NSW) (“the Act”) and sought an order restraining the executor from dealing with the Stavrianos estate pending the determination of the family provision application.

As we have outlined previously in order to successfully make a family provision claim on an estate; a two-stage approach is applied by the Court:

  1. was the provision (if any) made for the applicant ‘inadequate for (his/her) proper maintenance, education and advancement in life’ having regard, amongst other things, to the applicant’s financial position, the size and nature of the deceased’s estate, the totality of the relationship between the applicant and the deceased, and
  2. the relationship between the deceased and other persons who have legitimate claims on the estate.

Stavrianos left a Will, dated 14 May 2013, Probate of which was granted, on 10 January 2018; the estate had an estimated value of $4,340,622.

Pascall a disability pensioner, was Stavrianos’s younger brother and submitted that he had not received any provision from the estate of either of his parents, even though he had made a substantial contribution to building their estate assets.

Pascall claimed that he had a “very poor, strained and complex relationship” with his mother and “was generally on the outer with her for reasons which I still do not understand”. Similarly, Pascall’s relationship with Stavrianos deteriorated due to a combination of factors including their mother’s influence, following the death of their father in the early 1970s.

The brothers had a falling out over non-payment of wages to Pascall by Stavrianos; who allegedly attacked Pascall with a knife; in the ensuing struggle Stavrianos was “kicked..in his privates” before Pascall left the scene. After which there was little, or no, contact between the brothers for more than 40 years prior to Stavrianos’s death.

Pascall decided to make a claim as he believed he had performed a large amount of work for the accumulation of assets by their parents, which were then transferred to Stavrianos

The Court dismissed Pascalls application with costs as the case was without substance and continuation of the proceedings would be an abuse of process and frivolous, as the Plaintiff’s case cannot possibly succeed. There was very little, if any, contact between the brothers for more than 40 years prior to Stavrianos’s death; nothing in their relationship over that period that creates an obligation, on the part of the deceased, to make provision for the Plaintiff in his Will.

The application amounts to little more than a contention that an obligation was owed to him because he was the deceased’s brother and because the deceased had been favoured by their parents.

It is impossible to conclude that Pascall would be able to establish any factors which, when added to the facts which render him an eligible person, give him the status of a person who would generally be regarded, according to community standards and expectations, as a natural object of testamentary recognition.

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