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Promises, promises

Succession Law News | September 2015

As we have discussed previously, there is more than one way to “skin a cat” or to bring a claim against the estate of a deceased person where the claimant believes they have missed out on an entitlement to a share of that estate.

The recent decision of the Supreme Court of NSW in Sedgwick v Varzonek [2015] NSWSC 1275 involved the question of whether statements made by a deceased person could be said to have been “promissory” [promises] and to have created expectations upon which the Plaintiff could have reasonably relied upon. The Plaintiff brought proceedings in this case pursuant to section 57 of the Succession Act, for an order for financial provision out of the estate of the late Marlene Xenia Reis (“the Deceased”).

The Plaintiff knew the Deceased for around 9 years, during which the Deceased was being treated for a mental illness. The Plaintiff claimed that he was the de facto partner of the Deceased at the time of her death and as a result he was an ‘eligible person’ under the Act, and could make a claim for provision from the Deceased’s estate.

The Plaintiff’s alleged relationship with the Deceased was not found to be a de facto relationship or a close personal relationship for the purposes of being an “eligible person”.

The Plaintiff also made claims in contract and equitable estoppel in respect of statements allegedly made to the Plaintiff by the Deceased which the Plaintiff claimed to have relied upon. The Plaintiff alleged that the Deceased made a number of statements and promises to him during their relationship.

As the Court found that the Plaintiff had failed to establish that he was an eligible person under the Act, and he was neither in a de facto or close personal relationship with the Deceased at the time of her death, the Plaintiff’s claim in contract failed. His claim in equitable estoppel, namely his claim to be entitled to $200,000 from the proceeds of Deceased’s settlement of her personal injury proceedings, was successful. 

If you have any questions or concerns about a deceased estate or making a Will, the solicitors at Forum Law are well qualified and experienced to advise and assist you. Please contact us to discuss your concerns or about making a Will, Power of Attorney or Appointment of a Guardian.

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