Court dismisses family claim provision in estate case

Mr Townsend explained that the daughter, Nerez Grant, sued her mother’s estate because her mother’s will did not provide “adequate provision for [her] proper maintenance, education or advancement in life”.

The court confirmed that the decision as to whether to make a family provision order in favour of the daughter, Nerez, would be a two-stage process, by first determining if what she has received is adequate and, if not, then what would be.

“[However], the relevant legislation (the NSW Succession Act) gives the court the power to determine what is adequate, including the power to refuse to make any order even though the applicant has shown the will to be inadequate. That is particularly so where there is evidence of mistreatment of the deceased by the child applying for more of the estate,” Mr Townsend noted.

The legislation makes it clear the “the court should accept that the deceased … is entitled to make no provision for a child, particularly in the case of one ‘who treats their parents callously, by withholding, without proper justification, their support and love from them in their declining years. Even more so where that callousness is compounded by hostility.”

Mr Townsend explained that the court is therefore permitted to consider the circumstances in which the deceased’s relationship with their child broke down or was dysfunctional including the character of the applicant child.

“In this case, there was conflicting evidence of what Nerez had done for, and to, her parents, particularly her mother. She maintained she’d been a loving daughter while the executor’s witnesses said quite the contrary,” he said.

“The court didn’t think much of the truthfulness of either Nerez or her daughter Kayasha, [who was] also involved in the proceedings.”

Justice Slattery found both women were poor witnesses and their evidence was unreliable.  

On the other hand, the executor of the estate, Nerez’ brother, had a number of witnesses from both inside and outside the family, all of whom were found to be reliable and believable.

Nerez failed in her claim for provision out of her mother’s estate. The court held that her ill treatment of her parents, particularly her mother, over a long period disentitled her to any further relief by way of family provision.

In his concluding comments, Justice Slattery stated that Nerez had failed in her claim for provision out of her mother’s estate on two principal grounds: her ill treatment of her parents, particularly her mother, over a long period, which disentitled her to any further relief by way of family provision under Succession Act, Chapter 3; and she has already received very substantial benefits from her mother throughout her lifetime.

“Mrs Grant was afraid of her daughter Nerez with good reason. Nerez behaved with callous brutality towards both of her parents over decades,” Justice Slattery stated.

“Nerez’ conduct over decades was calculated to make Mrs Grant fearful and compliant with her demands and it had that effect. Nerez treated her mother as a creature to be frightened and then coerced into doing what she wanted. Any vestiges of mother-daughter affection had long disappeared between Nerez and Mrs Grant.”