Terry McCabe

Chisak v Presot [2022] NSWCA 100 Judgment Date:  21 June 2022   Explanation: The recent decision of the NSW Court of Appeal in Chisak v Presot changes the landscape for grandchildren seeking further provision from a grandparent's estate.   Issue The appellant, Ivy Chisak (Ivy), made a claim for further provision (a 'family provision claim') from the estate of her late grandmother, Lily Savransky (Lily). Under Lily's final Will, Ivy was to receive one-fifth of her grandmother's estate. In order to bring a family provision claim, an applicant must first establish that they are an 'eligible person' within the meaning of section 57(1) of the Succession Act 2006 (NSW) (the Succession Act). Categories include: a person who was the spouse (or de facto partner) of the deceased at the time of death; a child of the deceased; or a former spouse of the deceased. In this instance, Ivy claimed eligibility under section 57(1)(e) of the Succession Act as a person: who was, at any particular time, wholly or partly dependent on the deceased person, and who is a grandchild of the deceased.   Background Ivy's mother (and Lily's daughter) died in September 1996 while Ivy was still an infant. The primary judge found that Ivy continued at all times thereafter to live with her father. However, there were several occasions between 2000 and 2003 when Ivy visited her grandmother and stayed with her for short periods of time (from three weeks to a month). Ivy did not see her grandmother at any time after 2003. Lily died on 8 September 2017.   Judgment Supreme Court of New South Wales The primary judge held that Ivy was not an eligible person within the meaning of section 57(1)(e) of the Succession Act. His Honour held that 'to qualify a grandchild as a dependent… the benefits provided by the will-maker, must be of such regularity and significance that one can say that the will-maker had clearly assumed a continuing responsibility for the grandchild's maintenance, education, or advancement in life'. In this instance, 'the indirectness of any assistance provided' by Lily to Ivy, being the care provided by Lily in the periods outlined above, 'must be viewed in the context of Ivy having remained in the care of her father, her ordinary primary caregiver, and upon whom, she was dependent for her maintenance and education'. Accordingly, Ivy 'cannot have been said to have been wholly or partly dependent' upon her grandmother.   Court of Appeal The finding of the primary judge was challenged on appeal. The Court of Appeal found that 'on the question of whether the grandchild is an eligible applicant under section 57(1)(e) the question is not whether the grandparent assumed a continuing responsibility for the grandchild's maintenance, education or advancement in life, but whether, for a particular time, the grandchild was wholly or partly dependent on his or her grandparent'. In this context, the phrase 'partly dependent' means 'at least "more than minimally"'. Furthermore, the Court did not consider it 'appropriate to conflate questions… such as whether the degree of dependence was such that the grandparent assumed parental responsibility for the grandchild, with the factual question of whether the grandchild did depend on the deceased for particular periods of time'. The Court held that Lily assumed parental responsibility for Ivy, who was a young girl at the time, during the weeks-long visits. While Ivy remained dependant on her father, dependence on her grandmother for a few weeks or a month on several occasions could not be regarded as minimal. The Court ultimately found that Ivy was dependent on her grandmother during the relevant periods and therefore passed the threshold of establishing that she was an eligible person. However, Ivy's claim was unsuccessful, the Court of Appeal finding that there was no ground for appellate intervention in respect of the primary judge's finding that adequate provision had been made for Ivy's maintenance, education and advancement in life.   Key Takeaways This decision relaxes the standard for a grandchild to establish dependency on a grandparent and is a departure from the Court's traditionally conservative view of claims by grandchildren. It indicates that to qualify a grandchild as dependant the dependency of the grandchild does not need to be significant or in place of a parent, rather all that is required is that it is more than minimal. It may have consequences both for clients completing their estate planning and potential applicants for family provision orders.     If you require advice in relation to your estate planning or a potential family provision claim, please feel free to contact one of the solicitors in our Private Clients team. Alternatively, you can email Terry McCabe, the Principal of the group, directly at [email protected].

Published by Terry McCabe

24 March, 2023