Chisak v Presot [2022] NSWCA 100
In Chisak v Presot [2022] NSWCA 100, the NSW Court of Appeal (‘the Court’) considered whether a grandchild may be considered an eligible person under the Succession Act 2006 (NSW) (‘the Act’).
The case marked a significant development in relation to the eligibility of grandchildren to make claims against their grandparent’s estate.
The case surrounded granddaughter, Ms Ivy Chisak who sought for further provision from her late grandmother, Ms Lily Savransky’s Estate. To make a Family Provisions Application, the Appellant must first establish that they are an ‘Eligible Person’. The following are deemed eligible persons under s 57(1) of the Act:
(a) a person who was the spouse of the deceased person at the time of the deceased person’s death,
(b) a person with whom the deceased person was living in a de facto relationship at the time of the deceased person’s death,
(c) a child of the deceased person,
(d) a former spouse of the deceased person,
(e) a person–
(i) who was, at any particular time, wholly or partly dependent on the deceased person, and
(ii) who is a grandchild of the deceased person or was, at that particular time or at any other time, a member of the household of which the deceased person was a member,
(f) a person with whom the deceased person was living in a close personal relationship at the time of the deceased person’s death.
Ms Chisak’s position was that she was an Eligible Person under s 57(1)(e). Ms Chisak therefore had to evidence that she was at any particular time, wholly or partly dependent on her grandmother.
Ms Chisak claimed that she resided with her grandmother for about a month when she was five years of age and that her grandmother had also resided with her for periods of approximately 3 to 4 weeks on three or four occasions between 2000 and 2003. Ms Chisak deposed that her grandmother took care of her when she lived with her during these periods.
Ms Chisak had not seen her grandmother since 2003 and alleged that it was due to her wishes for her not to see her grandmother. Ms Chisak did however have telephone contact with her grandmother between 2003 and 2007. Ms Chisak did not have any contact with her grandmother from 2007.
The Court accepted that Ms Chisak had stayed with her grandmother for at least two or three visits at the age of five and noted that it can be inferred given her age that the deceased assumed parental responsibility for Ms Chisak during these visits. The Court noted that a baby left in the care of grandparents overnight may be dependant for that particular period of time on his or her grandparents however that dependence would be minimal and not partial dependence.
The Court further noted that although there is no doubt Ms Chisak remained dependent on her father, she was also partly dependant on her grandmother. The Court identified that partial dependency under s 59(1)(e) need not be “significant” rather than “more than minimal”. Ms Chisak was therefore deemed to be an Eligible Person.
The Court’s decision is noteworthy as many grandparents informally contribute to their grandchildren’s upbringing by offering care during school holidays, providing meals, accommodation, or supervision while parents are at work or on holidays. While such support may appear casual or temporary, it may be viewed by the Court as partial dependency and result in a person being deemed an Eligible Person under s 59(1)(e).
Although Ms Chisak was deemed to be an Eligible Person under s 59(1)(e), each Family Provisions Application is considered on its own circumstances. For specific advice as to whether a person may be considered an Eligible Person under the Succession Act 2006 (NSW), please contact our office on (02) 9223 5299 or please schedule a Clarity Call with our office.