Section 57 of the Succession Act 2006 (NSW) provides that a person may bring a claim if they were a member of the deceased’s household and were wholly or partly dependent on the deceased at any time.
Household membership: The applicant lived as part of the deceased’s household.
Dependence: The applicant relied wholly or partly on the deceased for financial support, whether at the time of death or at any earlier time.
The court assesses the totality of circumstances, taking into account the relationship, the estate, and the claimant’s financial position.
- The claimant’s financial needs, income, and resources.
- The value and nature of the deceased’s estate.
- The closeness and character of the relationship between the claimant and the deceased.
- Any financial or personal contributions the claimant made to the deceased or their estate
- The claimant’s age, health, and any disabilities.
In NSW, a family provision claim can be made by a sibling if they were financially dependent on the deceased or lived with them in a close personal relationship, and can prove that the deceased inadequately provided for them.
El-Bayeh v El-Bayeh [2025] NSWSC 1177
Youssef El-Bayeh (the deceased), later known as Tony Salim, died on April 24, 2023, at the age of 78, survived by his wife, Yvonne, four of his five children (including the defendant, Andrew El-Bayeh), and ten siblings, one of whom—the plaintiff—is also named Tony El-Bayeh. In El-Bayeh v El-Bayeh [2025] NSWSC 1177, for clarity, Hmelnitsky J referred to the deceased as Youssef and to the plaintiff as Tony.
Background
The deceased made his final Will on March 13, 2023, appointing his son, Andrew (the defendant), as executor and trustee. Under the Will, the deceased left:
- $1,000,000 each to his daughters Denise, Linda, and Elizabeth;
- $50,000 to his brother Sayed;
- $100,000 to his wife, Yvonne; and
- The remainder of his estate to the defendant, subject to conditions requiring him to:
- allow Yvonne to live in the Caithness Crescent family home,
- cover the property’s maintenance costs, and
- Provide financial support to Yvonne from the estate until her death.
The defendant was granted Probate on 25 September 2024. The estate’s initial inventory listed assets worth about $24.16 million, including the family home and Huntingwood properties valued at roughly $20 million. However, the defendant later estimated that the land alone was worth over $50 million, with a total net estate value of approximately $44.78 million.
The deceased
Born in Lebanon in 1944, the deceased was the eldest child of Salim and Linda El-Bayeh. Migrating to Australia in 1965 at the age of 21, followed soon after by his father and sister, the rest of the family joined them in 1969. The family settled in a house on Anderson Avenue, Ryde, which the deceased later owned. When the younger siblings arrived—including Tony (the plaintiff), then aged four—none of them or their parents spoke English, and Salim and Linda never became fluent in it.
The deceased quickly became the family’s leader and de facto father figure, especially to his younger brothers, the plaintiff, Louis, and David. As the only fluent English speaker, the deceased managed schooling, social activities, and family finances. All income—including his father’s wages and siblings’ social security payments—was handled by the deceased, who paid household and schooling expenses. Even as the siblings worked in a family takeaway business in Parramatta, the deceased kept control of the earnings and finances.
A strong and controlling personality, the deceased took his leadership role seriously, often dominating household affairs. He built a family home at Caithness Crescent, managed everyone’s mail, and even held the plaintiff’s passport and bank passbook well into his adulthood. Salim and Linda encouraged obedience to the deceased, telling the children to “listen and conform” to his direction.
Hmelnitsky J accepted the plaintiff’s evidence that he considered the deceased as a father figure right up to his early adulthood.
Takeaway business
Louis began the family’s takeaway business in 1987, but the deceased soon took complete control of it. The siblings worked extremely long hours—often up to 16 hours —for just $20 a day. After leaving school in 1983, the plaintiff lived at the family home and received social security benefits, which the deceased controlled. The plaintiff continued to work in the family business until it closed in 1998, never earning more than the small daily payments the deceased provided.
Deceased’s acquisition of property
After leaving his job as a factory worker in 1979, the deceased continued acquiring properties, often registering them in the names of family members while controlling their income. In 1979, he bought a Winston Hills property under his sister Leila’s name. A decade later, in 1989, the deceased arranged for the purchase of three more properties in the names of his brothers: one each for David (Hassall Street), Louis (George Street), and the plaintiff (O’Connell Street).
Although the defendant later claimed that the deceased had kept ownership of the properties hidden to conceal his wealth (“flying under the radar”), Hmelnitsky J found this claim unconvincing. Evidence from David showed that the deceased had promised their parents that each son would have a home from the profits of the family takeaway business, where the brothers worked long hours without pay. The deceased made deposits and loans in the siblings’ names for the 1989 purchases, with the deceased handling the business funds.
Further evidence supported the brothers’ ownership: in 2002, the deceased asked the plaintiff to sell the O’Connell Street property, promising him, in return, the Lanhams Road property, which the deceased had transferred into the plaintiff’s name years earlier. The plaintiff received nothing; instead, the deceased used the sale proceeds to build a warehouse that later formed part of his estate. Hmelnitsky J therefore accepted that the 1989 properties were genuinely acquired for the brothers’ benefit, not held secretly for the deceased’s benefit.
The plaintiff applied for a family provision order under Chapter 3 of the Succession Act 2006 (NSW), seeking a share of the deceased’s estate. The case arises in somewhat unusual family and financial circumstances.
Although the plaintiff initially sought notional estate orders, Hmelnitsky J noted that the estate remains unadministered, meaning any provision order could be satisfied directly from the estate’s assets.
2006 proceedings
Between 2000 and 2001, the deceased withdrew over $122,000 from a Westpac loan account held in his brother David’s name, and a further $300,000 from Perpetual Trustee—again in David’s name and without his knowledge. The Hassall Street property, owned by David, was used as security for these loans. When Perpetual Trustee sought repayment and possession in 2006, David first discovered the fraud and successfully sued the deceased, with judgment given in his favour by McCallum J in 2010.
During that case, the deceased admitted facts that strongly supported the plaintiff’s position in the present proceedings. The deceased acknowledged raising his siblings “like [his] children,” controlling the family’s financial affairs, and purchasing houses for their benefit in accordance with a promise to his late father that each sibling would have a home. The deceased testified that he bought the 1989 properties for the benefit of his brothers, not for his own use.
Although the defendant objected to the admission of this transcript as hearsay, Hmelnitsky J admitted relevant portions under s 100(4) of the Succession Act 2006 (NSW), noting they contained statements adverse to the deceased’s interests.
“Where a statement was made by a deceased person during the person’s lifetime while giving oral evidence in a legal proceeding (being a civil or criminal proceeding or inquiry in which evidence is or may be given, or an arbitration), the statement may be approved in any manner authorised by the Court.”
Hmelnitsky J found the defendant to be an unreliable and combative witness whose testimony—particularly regarding an alleged estrangement between the deceased and the plaintiff—was contradicted by other evidence, including the deceased’s own 2010 testimony. The court accepted that the defendant’s account was self-serving and inconsistent, preferring the evidence of other witnesses.
Accordingly, Hmelnitsky J concluded that when the deceased arranged the purchase of the O’Connell Street property in 1989, he intended the plaintiff to be its true (beneficial) owner.
Lanhams Road property
The deceased ultimately broke his 2002 promise to give the plaintiff the Lanhams Road property. In September 2010, shortly before judgment in earlier proceedings, the deceased lodged a caveat over the property claiming only an equitable charge or mortgage for $304,000—not ownership, suggesting he no longer viewed himself as the property’s owner, acknowledging the plaintiff’s beneficial interest despite the title being in the name “Tony Salim.”
Around this time, the plaintiff and the deceased’s relationship began to deteriorate. Until 2010, the plaintiff and the deceased had remained close, living together with the plaintiff acting as the deceased’s intermediary with other siblings, and assisting him during legal disputes. However, the deceased eventually accused the plaintiff of siding with his brothers and told him to leave the family home. At the age of 45, the plaintiff moved out for the first time, initially living with his brother, David, and later renting with a friend.
Bankruptcy
In December 2011, the deceased was declared bankrupt due to large debts arising from earlier court orders and costs. The defendant claimed he then devoted himself to rebuilding his father’s finances.
Fearing that the deceased might deal with the Lanhams Road property wrongfully, the plaintiff sought legal assistance in 2013, resulting in a “registration and search stopper” being placed on the title to prevent fraud. Nonetheless, in 2020, the deceased formally changed his name to “Tony Salim” (the same as the registered owner), withdrew his earlier caveat, and sold the property for $1.07 million. At the time, he owed Centrelink about $800,000, which he appears to have repaid from the sale proceeds.
The plaintiff’s circumstances
As of August 2025, the plaintiff had no real property and minimal assets, totalling approximately $94,024 (not yet accessible), a car worth $7,500, and personal items valued at $3,500. His debts included a $15,000 loan from his brother David and a small credit card balance.
A Lebanese lawyer, Hanna Douaihy, managing the estate of the plaintiff and the deceased’s late father, confirmed that Salim died intestate and that his Lebanese properties would be divided equally among his eleven children. The plaintiff expected to receive between USD 30,000 and USD 48,000 from the sales, which were due later in 2025.
Income & expenses
The plaintiff earns approximately $1,200 per month from massage therapy, and the rest from Centrelink payments. However, his monthly expenses are roughly $4,662, resulting in a deficit of $500. His main costs are rent ($1,300), household expenses ($1,200), and vehicle and health costs (about $700 each). He is single, lives in shared rental accommodation, and has no dependants.
The plaintiff’s current and future needs
The plaintiff’s health is poor: he has heart disease requiring a stent, long COVID, bursitis, hernia, cholesterol issues, vitamin D deficiency, and chronic digestive problems, requiring ongoing medication and specialist care.
The plaintiff wishes to pay off his debts, maintain cardiovascular treatment, and eventually buy a modest home (estimated $1–1.5 million, plus $25,000 for furnishings), as renting has become unaffordable. He also needs to replace his aging car, estimated to cost $ 33,000.
The estate
The estate, managed by the defendant, was valued between about $45 million and $55 million, including:
- Caithness Crescent home ($2.1–2.3 million);
- Huntingwood properties ($41–50 million);
- ANZ savings ($24,564); and
- Myer shares ($2.18 million).
- Liabilities included a $5.49 million mortgage, $42,000 in land tax, and future CGT on the shares.
Issues in dispute
The court found that the deceased failed to make adequate provision for the plaintiff in his Will.
The Court had to decide:
- Whether the plaintiff was an eligible person under s 57 Succession Act 2006 (NSW);
- Whether factors warranted the application (s 59);
- Whether the deceased’s Will provided adequate provision for the plaintiff, and
- If not, what provision should be made?
Eligible person
The plaintiff qualified under s 57(1)(e) as a person who was partly dependent on the deceased and a long-term member of their household. Hmelnitsky J found the plaintiff was dependent on the deceased from childhood through adulthood—for accommodation, finances, and general welfare—seeing him as a father figure.
Factors Warranting
Hmelnitsky J held that factors existed to justify the plaintiff’s claim. The deceased had a moral and domestic obligation to provide for the plaintiff:
- The plaintiff’s years of unpaid labour in the family business (earning only $20/day);
- The deceased’s promise to their father to provide each brother with a home;
- the property purchases in which the deceased bought homes for his brothers, including the plaintiff; and
- The deceased’s subsequent assurance that the plaintiff would receive the Lanhams Road property.
The deceased’s 2010 caveat over the Lanhams Road property supported this understanding. Hmelnitsky J also noted the deceased’s wealth was built mainly on income he controlled, reinforcing a moral duty to provide for his siblings.
Should the Court make a family provision?
Having found the plaintiff eligible and the claim warranted, the court turned to whether the deceased’s Will made adequate and proper provision for the plaintiff’s maintenance or advancement under s 59(1)(c). Hmelnitsky J emphasised that this required a holistic, evaluative judgment considering not just the plaintiff’s financial need but all relevant moral, relational, and historical factors under s 60(2)—as outlined in authorities such as Singer v Berghouse(1994) 181 CLR 201, Bassett v Bassett [2021] NSWCA 320, and Angius v Angius[2025] NSWCA 113.
Adequate provision
- Relationship and Dependence: The plaintiff was deeply dependent on the deceased financially, emotionally, and socially—well into adulthood, living under the deceased’s roof until age 45. Their relationship only broke down in 2010, when the deceased mistakenly believed the plaintiff was siding with the other siblings. A falling out did not relieve the deceased of their long-standing moral and testamentary obligations, including the 2002 promise that the plaintiff would receive the Lanhams Road property.
- The plaintiff’s financial and Health Circumstances: The plaintiff had a limited income, poor health, and little chance of improving his financial position. His modest lifestyle and medical needs made him vulnerable and deserving of some provision from the deceased’s large estate.
- Size of the Estate: The estate value is between $45 million and $55 million— an amount that could easily accommodate the plaintiff’s claim without affecting specific legacies or causing financial hardship to the defendant (the residuary beneficiary) or Yvonne (the deceased’s widow). Given this, Hmelnitsky J held that it justified a “liberal” approach to provision.
- Family Contributions: Much of the deceased’s wealth came from the unpaid labour and financial contributions of his siblings, including the plaintiff, during years spent working in the family takeaway business. The deceased had stopped formal employment in 1979, meaning the family’s joint efforts built the estate’s foundation.
- Broken Promise and Property Dealings: The plaintiff allowed the deceased to sell the O’Connell Street property (purchased for the plaintiff’s benefit) on the promise that he would receive the Lanhams Road property instead. The deceased broke this promise—changing his name to “Tony Salim,” withdrawing a caveat, and selling the property in 2021 for over $1 million without giving the plaintiff anything.
What orders should be made?
Hmelnitsky J accepted that the proceeds of the Lanhams Road sale should guide the appropriate level of provision. The plaintiff’s primary need was secure housing near his family, with modest homes in that area valued between $1 million and $1.5 million.
Although the defendant argued that the plaintiff’s claim exceeded what was typical for an adult sibling, Hmelnitsky J held that these were not ordinary circumstances. The plaintiff had remained dependent on the deceased for most of his life, worked for him on minimal pay, and relied on promises the deceased later broke.
The deceased’s Will, which left vast wealth to the defendant but gave modest legacies to others (including just $100,000 to his widow and $1 million each to his daughters), was viewed as inconsistent and not reflective of the deceased’s true obligations.
The court ordered that:
- Under s 59 of the Succession Act 2006 (NSW), the plaintiff received a lump sum of $1,450,000 from the deceased’s estate to enable him to buy a modest home and cover related costs; and
- The defendant must pay the plaintiff’s legal costs.
This sum was deemed sufficient and just, ensuring the plaintiff finally received the support the deceased had long promised but never delivered.