The deceased omitted to mention them in his last will
The NSW Supreme Court has ruled on the entitlement of the testator's grandchildren for a provision, although the testator omitted to mention them in his will.
In Curtis v Curtis  NSWSC 1164, Barry Curtis executed a will before he died in 2022 but did not make any provision for his grandchildren, Blake and Brock Curtis. The sole beneficiary under the will is Barry's son, Rodney. The brothers believed there should have been a provision for them, so they applied to the court per s. 59 of the Succession Act 2006 (NSW).
Barry had two children, Darran and Rodney. Darran died in 2003, leaving behind his two sons, Blake and Brock. The defendant, Rodney Curtis, did not dispute that plaintiffs Blake and Brock were Barry's grandchildren. Still, he disputed that they had been "wholly or partly dependent upon the deceased or were otherwise entitled to relief."
Under the Succession Act, a grandchild may be eligible to inherit if the grandchild was "wholly or partly dependent on the deceased person." The court noted that the existence of dependency had been the subject of much judicial comment but emphasised that every case should be decided on its facts.
The defendant claimed that his family had little to do with Blake and Brock's family after their parents separated in 1992. The court noted that Rodney intended to create different families where his father had minimal contact with Darran's children.
Blake asserted that he always had a close and loving relationship with his "grandad". He claimed that his parents separated when he was three years old, after which he usually lived with his mother but spent time during the day with his father. When his father became ill, Blake said he would spend longer periods at his grandfather's home.
Blake further claimed that "If dad was away, Brock and I would still reside with grandad on weekends regardless of whether Dad was away. ... 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 observed that the weekends spent with the deceased are an important dependency element. The court said this was not a recreational weekend spent with a grandfather. The deceased stepped in to care for the plaintiffs while their father was working.
Brock stated, "My grandad was instrumental in us being able to live with my dad. He was caring for my father and was also looking after us. Sometimes, my father was very sick, and it fell to my Grandad to do what a parent does for the child."
The court further noted that Brock's description of his relationship with his grandfather had all the attributes of children being in the care of and dependent upon their grandfather for short periods of time. The court also observed that the deceased filled a gap in the brothers' upbringing, which their father did not provide.
Brock also claimed that when he was 11 or 12, his father moved in with another woman and the brothers felt welcomed in that home. Accordingly, the brothers would not stay overnight with their father but would stay with their grandfather.
Brock said his relationship with his grandfather continued in his adult years. He visited his grandfather regularly, and Brock spent time with him and performed some work about the house when he was hospitalised.
Rodney presented various evidence to dispute the plaintiff's claim, including his testimony that after Darran and his wife separated, his family saw "very little" of the plaintiffs.
Rodney explained, "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 Brocke's relationship with the deceased was "non-existent until Dad became older and eventually became ill."
However, the court observed that Rodney intended to defeat the brothers' claims to secure the maximum benefit from the estate for himself. While the court acknowledged that there were errors in the plaintiffs' evidence, it still decided to accept their evidence regarding their relationship with their grandfather.
Ultimately, the court ruled that Brock and Blake were dependent upon the deceased, at least partly, but to the extent that qualifies them as eligible persons 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 was typical and lacked notable features justifying a claim.
The defendant said there were "notable features apparently absent from the relationship, especially one said to approach that of a parent/child." For instance, there was no evidence of financial assistance or that the deceased held himself out to third parties as the grandfather of the plaintiffs. Rodney also pointed to the absence of testamentary recognition in the deceased's will. He made two previous wills, and neither of them mentioned the brothers.
However, the court believed that the absence of testamentary intention was met and defeated by the statements by the deceased that, rather than the deceased changing his will, Rodney would "do the right thing."
The court also considered as an important factor the fact that Darran would have established a testamentary intention to be a beneficiary under his father's will, a status that, in his absence, was assumed by his children.
The court was ultimately satisfied that there were factors warranting provision for the plaintiffs. Accordingly, the court made adequate provisions for each plaintiff by awarding them 20 per cent each of the net proceeds of the house sale.