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Case summary: Curtis v Curtis [2024] NSWCA 136 – The challenges of contesting a will in NSW

Published on July 30, 2024 by Hanaan Indari

In a recent NSW Court of Appeal decision in Curtis v Curtis [1] the court (Leeming JA, Mitchelmore JA and Basten AJA agreeing) overturned a previous judgment that granted family provision orders to two grandsons from their grandfather’s estate. The case sheds light on significant aspects of succession law and the challenges of contesting a will in New South Wales (NSW).

Background

The executor of the will was the deceased’s brother, Peter Curtis.

The grandsons, Blake Curtis and Brock Curtis, both in their early 30s at the time of the application, were brothers. Their grandfather, Barry Curtis, died on January 11, 2022, leaving a will in which he bequeathed his entire estate to his surviving child, Rodney Curtis. The estate comprised Barry’s home in West Ballina and a small sum of money (approximately $20,000.00).

Blake and Brock were the children of Barry’s other son, Darren Curtis, who predeceased Barry. Consequently, the court had to adjudicate a contest between the grandsons and their uncle, Rodney.

Supreme Court Decision

In the initial decision[2], the grandsons brought family provision claims against their grandfather’s estate. The court had to determine two main issues: whether the grandsons were eligible persons under the Succession Act 2006 (NSW) and whether there were factors warranting their claims.

Establishing eligibility

The grandsons claimed partial dependency on Barry due to the care he provided during their childhood and teenage years. They testified that Barry assumed a father figure role after Darren was diagnosed with cancer in 2003. The court accepted their evidence of partial dependency, qualifying them as eligible persons to bring their claims.

Factors warranting the claims

The court found that there were factors warranting the grandsons’ claims, including the death of their father, Darren, and Barry stepping in to provide care. The court recognised that, had Darren been alive, he likely would have been a beneficiary under Barry’s will.

Adequate provision

Considering the financial situations of the grandsons—neither owning real estate, having modest incomes, and one suffering from PTSD—the court concluded that they had a legitimate claim for provision from the estate. Consequently, the court ordered the sale of the West Ballina property, with each grandson receiving 20% of the net sale proceeds and the remaining balance awarded to Rodney.

Court of Appeal Decision

The appellant, Peter Curtis is the executor of the deceased estate of his brother, Mr Barry Curtis.

The appeal centred on the argument that the initial court erred in evaluating the evidence and failed to consider material evidence that contradicted the grandsons’ claims. Rodney and Peter Curtis contested the grandsons’ dependency, arguing that Blake lived with Barry for only a brief period and that the family saw very little of Blake and Brock. This account was supported by evidence from Barry’s neighbours.

The Court held (Leeming JA, Mitchelmore JA and Basten AJA agreeing), allowing the appeal:

• The primary judge failed to consider the significance of the 2009 will. That was objective evidence that supported the appellant’s account, which was the subject of the appellant’s submissions at trial [3].
• The primary judge failed to resolve the conflict between the evidence of the respondent and the evidence of the appellant, which was said to be “generally accepted” even though it contradicted the respondents’ account [4].
• The primary judge erred in putting to one side the evidence of two neighbours who had presented as close friends of the deceased, and in failing to assess their independent evidence regarding the whole of the evidence before the primary judge [5].
• The primary judge erred in failing to consider the business records produced contemporaneously by third parties which bore directly on the quality of Barry’s relationship with the respondents’ mother and were therefore centrally relevant [6].

Instead of ordering a retrial, the Court of Appeal concluded that the evidence did not support a finding of factors warranting the grandsons’ family provision application. As a result, the orders for provision were set aside.

Takeaway messages

This case illustrates several critical points regarding family provision claims and the challenging of a will in NSW:

i. Eligibility of grandchildren – grandchildren can be considered eligible persons under the Succession Act if they can prove partial or whole dependency on the deceased. However, establishing this dependency requires thorough and credible evidence.

ii. Factors warranting claims – courts must carefully evaluate all evidence and submissions, including independent and contemporaneous documents, to determine whether factors warranting a claim exist.

iii. Adequate provision – the financial needs and personal circumstances of claimants are crucial in determining adequate provision, but these must be balanced with the expressed intentions in the will and the credibility of all evidence presented.

iv. Drafting wills – potential family provision claims should be carefully considered when drafting a will. Including clear intentions and provisions for potential dependents can help mitigate disputes and ensure that the will reflects the testator’s true intentions.

The decision highlights the complexities of family provision claims and the challenging of a will in NSW. It underscores the importance of careful estate planning and consideration of potential claims from dependents, including grandchildren. If you are involved in estate planning or facing a potential family provision claim, it is crucial to seek professional legal advice to navigate these complex issues.

You can read our other article on Family Provision Claims in NSW here.

Please note that this article does not constitute legal advice. If you are seeking professional advice on any legal matters, you can contact Carroll & O’Dea Lawyers on 1800 059 278 or via our Contact Page and one of our lawyers will be able to assist you.

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[1] [2024] NSWCA 136.

[2] See Curtis v Curtis [2023] NSW SC 1164.

[3] Curtis v Curtis [2024] NSWCA 136 at [69] – [93].

[4] Ibid at [94] – [103].

[5] Ibid at [104] – [114].

[6] Ibid at [115] – [119].