In Curtis v Curtis [2024] NSWCA 136, the Court of Appeal granted an appeal from a decision of the Equity Division of the Supreme Court of NSW, which provided family provision orders to two grandchildren from their grandfather’s estate. The deceased, Mr. Barry Curtis, was predeceased by his son, Darran Curtis, who had two sons, Blake Curtis and Brock Curtis. Blake and Brock did not receive anything from Barry’s Will, so they sought family provision orders.
Family Provision
In New South Wales, some, but not all, grandchildren of a deceased grandparent are eligible to apply for a family provision order concerning the estate or notional estate of the deceased. The standing of a grandchild to apply is governed by s57 of the Succession Act 2006 (NSW), which defines persons eligible to make a family provision claim; including a grandchild who was wholly or partly dependent on the deceased or someone, with whom the deceased person was living in a close personal relationship at the time of their death.
maintenance, education or advancement
In addition, s59 considers whether the family provision claim is ‘for the proper maintenance, education or advancement in life of the claimant’ while s60 considers matters such as the deceased’s obligations and financial circumstances, the claimant’s financial position and the estate’s value.
- Generally speaking, a grandparent does not have a responsibility to make a provision for a grandchild as this responsibility is that of the parents;
- Where a grandparent effectively adopts a grandchild because of the loss of parents at a young age or has been taken in by the grandparent, these circumstances could give rise to a valid claim.
- If a child has lived with the grandparent(s), this could be a significant factor, but even so, the deceased must assume a role more like that of a parent supporting them financially and emotionally;
- a family relationship between a grandparent and grandchild does not establish an obligation to provide for the grandchild in their Will. The parties may create a moral responsibility in cases where, for example, the grandchild provides care;
- Just because the grandparent is generous in contributing, for example, to the grandchild’s education, this does not necessarily translate into an obligation to provide for them;
- Occasional or even frequent gifts do not make the grandchild wholly or partially dependent on the Succession Act;
- Considering what inheritance or financial support a grandchild might reasonably expect from their parents is relevant.
Background
In Curtis v Curtis [2023] NSWSC 1164, Barry Curtis (the deceased) passed away in 2022, leaving a Will that did not provide for his grandchildren (the plaintiffs) Blake and Brock Curtis: the Will named Barry’s son, Rodney, (the defendant) as the sole beneficiary. The deceased had two children, Darran and Rodney. Darran passed away in 2003, leaving behind his two sons, the plaintiffs who believed they should have been included in their grandfather’s Will and applied to the Court under s.59 of the Succession Act 2006 (NSW).
The defendant, Rodney Curtis, did not contest the fact that the plaintiffs were the deceased’s grandchildren but disputed their dependency on the deceased or their entitlement to relief.
Dependency
According to the Succession Act, a grandchild may be considered for inheritance if they were “wholly or partly dependent on the deceased person.” The Court noted that although the judiciary had widely discussed dependency, each case should be decided based on its unique facts.
The defendant argued that his family had minimal contact with the plaintiffs Blake and Brock’s family after their parents separated in 1992. The Court observed that Rodney had intended to establish separate families where his father had limited contact with Darran’s children.
Blake stated that he had always shared a close and affectionate relationship with his grandfather. He explained that his parents separated when he was three years old, after which he primarily lived with his mother but spent the daytime with his father. Blake claimed he spent longer at his grandfather’s residence when his father fell ill.
“If dad was away, Brock and I would still reside with Grandad on weekends no matter whether Dad was here. … Grandad would provide our meals, make sure we were clean, brushed our teeth, and all the usual things a parent does for a child.”
The NSW Supreme Court noted that the weekends spent with the deceased played a crucial role in establishing dependency. The Court emphasized that this was not merely leisurely weekends spent with a grandfather but that the deceased had stepped in to care for the plaintiffs while their father was working.
“My grandad played a crucial role in us being able to live with my dad. He took care of my father and also looked after us. Sometimes, my father was very ill, and it was up to my Grandad to fulfil a parent’s role for us.”
The Court further observed that Brock’s description of his relationship with his grandfather exhibited all the signs of children being in the care of and dependent on their grandfather for short periods. The Court also noted that the deceased filled a void in the plaintiffs ‘ upbringing that their father did not fill.
Brock also claimed that when he was 11 or 12, his father moved in with another woman, and the brothers felt unwelcomed in that home. Consequently, they would not stay overnight with their father but with the deceased instead.
Brock stated that his relationship with the deceased continued into his adult years. He visited his grandfather regularly and helped out around the house when hospitalised.
Testamentary intention
The plaintiffs presented evidence of the deceased’s “testamentary” intention to counter the lack of testamentary recognition. Blake recalled a conversation while installing health aides at the deceased’s home to assist with mobility.
“Grandad: There is probably no point to this; I am not going to live forever.
Blake: Do you need anything? Do you have a will?
Grandad: I have been talking to your mum about this; we have made an appointment to see a lawyer to update it.
You will be taken care of; Rodney will take care of you both.”
The defendant presented various evidence to challenge the plaintiff’s claim, including his testimony that his family saw “very little” of the plaintiffs after Darran and his wife separated.
“Our family, including Dad, saw very little of the children, and they did not attend Christmas functions or other special occasions until they were grown.”
Rodney also claimed that Brock’s relationship with the deceased was
“non-existent until Dad became older and eventually became ill.”
However, the Court observed that the defendant sought to undermine the brothers’ claims to maximize his benefit from the estate. While acknowledging errors in the plaintiffs’ evidence, the Court still accepted their account of their relationship with the deceased.
Decision
Ultimately, the Court determined that the plaintiffs were partly dependent on the deceased, qualifying them as eligible parties to bring their claim. The Court also examined factors warranting family provision claims by the plaintiffs against the deceased’s estate.
The defendant argued that the relationship between the plaintiffs and the deceased lacked notable features from the relationship, particularly those approaching that of a parent and child, warranted no family provision claim. For example, there was no evidence of financial support or that the deceased held himself out as the grandfather of the plaintiffs to others. The defendant also highlighted the lack of testamentary recognition in the deceased’s Will. He had made two previous wills, and neither mentioned the paintiffs.
Peter Curtis, the executor of the deceased estate, provided similar testimony backed up by two of the deceased’s neighbours, one of whom had never seen the plaintiffs.
However, the Court found that the plaintiff addressed the absence of testamentary intention through the deceased’s aspiration that Rodney would draw on the estate in aid of the welfare of the plaintiffs.
The plaintiffs and their mother testified that they lived with the deceased who took on a fatherly role after their father, Darran, was diagnosed with cancer in 2003. However, the defendant contested this by stating that Blake only lived with the deceased for three months and that the family had minimal contact with the plaintiffs.
However, the Court found that the absence of testamentary intention was addressed and overcome by
Section 60(2)(a), the comments about the relationship between the plaintiffs and the deceased established a long-standing and close relationship, which was further enhanced following the death of Darran.
Section 60(2)(b) of the Succession Act provides the obligations owed by the deceased to the plaintiffs must consider the fact that the plaintiffs are grandchildren and, therefore, have a lesser claim on the estate compared to Rodney, who is not only a son but also made significant contributions to his father’s welfare.
The Court recognised that s 60(2)(d), of the Actmprovided that the plaintiffs have limited resources and will have ongoing needs for their livelihoods and the support of Blake’s children. The Court further emphasised that there should be a balance between the plaintiff’s and defendant’s needs.
Section 60(2)(f) highlighted that although not posing an economic threat, Brock has PTSD and is likely to continue to do so, considering the nature of that illness.
The Court noted the plaintiffs made some contributions to the deceased’s welfare and house, s 60(2)(h), but these were considered minor factors in the overall assessment.
Lastly, in subsection 60(2)(j), it was emphasised that there are distinct examples of testamentary intention, not expressed through inclusion in a will, but rather through an aspiration that Rodney would draw on the estate to aid the welfare of the plaintiffs, as discussed earlier.z
The trial judge determined that the grandchildren could apply for family provision as they were partially dependent on their grandfather for some time. The judge favoured the account of the grandchildren and their mother over Rodney’s, citing their “general honesty.” For the same reasons, the judge concluded that there were grounds for a family provision application and found that the deceased’s Will did not adequately provide for the plaintiffs. The judge awarded each of them 20% of the proceeds from selling a house, the main asset in their grandfather’s estate.
Appeal
In Curtis v Curtis [2024] NSWCA 136, the Court of Appeal ruled that the trial judge did not consider crucial evidence that could verify the accuracy of the conflicting testimonies. The appellant presented several points of appeal regarding the primary judge’s decision:
The primary judge failed to consider the significance of the 2009 will, which removed the possibility of the respondents receiving their father’s share. It was regarded as objective evidence in favour of the appellant’s account.
The primary judge erred in failing to resolve the apparent conflict between the evidence of the respondents and the appellant nor adequately assess the independent proof of two neighbours who were close friends of the deceased or to consider business records produced contemporaneously by third parties, which were directly relevant to the quality of the deceased’s relationship with the respondent’s mother.
It was questioned whether it was appropriate for the primary judge to make provision in terms of a percentage of the net proceeds of the home sale rather than a fixed amount. The judge also made no findings regarding the respondents’ needs and the net proceeds amount, calling into question the approach’s compliance with s59(2). The appellant argued that a retrial was unnecessary as the material available to the primary judge pointed decisively against conclusions favourable to the respondents. It was also stated that the respondents had not sufficiently proven that they were “eligible persons,” and there were no “factors which warrant” the application.
Instead of ordering a new trial, the Court of Appeal concluded that the evidence presented to the trial judge did not support the existence of factors warranting a family provision application. Therefore, since the grandchildren did not meet this threshold requirement, the Court of Appeal set the family provision orders aside.