A recent Supreme Court case regarding an excluded beneficiary will be of interest to wills and estates practitioners. The court considered the effect of statements under s 100 of the Succession Act 2006 (NSW).
Nikolaos Tsiokanis died in 2019, aged 86. His will appointed two of his children as the executors of his estate. He made only $100 provision for his other daughter. The deceased made a lengthy statement in the will as to his reasons for effectively excluding his daughter.
The daughter brought a family provision claim. The estate was not a large one.
The court held that the relationship the deceased had with the executors was a stable one and they played an important role in caring for the deceased. The court said the deceased was entitled to, and did, take the plaintiff’s behaviour into account and was satisfied that it justified the reduction of the plaintiff’s share in the estate to nominal provision.
The court also held that the deceased was entitled, when considering any claim by an excluded beneficiary, to consider the nature and value of his estate and to consider, and give priority to, the competing claim of each of the executors with whom he had a close, loving, and supportive relationship.
The court noted that statements made by the deceased are admissible pursuant to s 100(2) of the Succession Act, however the court is not required to accept, unquestioningly, the truth, or accuracy, of the statements. This is particularly so if the content is denied by the applicant, or where there is other evidence that casts doubt upon their accuracy. The court needs to consider that the deceased may have made untrue, or inaccurate, statements, either deliberately, or unintentionally, or it may be that their view is misconceived.
Where evidence of a statement of a deceased is admitted under s 100(9), for the purpose of destroying, or supporting, the credibility of the deceased, s 100(10) permits evidence to be given for the purpose of showing that the deceased’s statement is inconsistent with another statement made, at any time, by the deceased.
Georgopoulos v Tsiokanis & Anor  NSWSC 563 (11 May 2022) will be added to the By Lawyers 101 Succession Answers publication.