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  • The Court of Appeal has stated the principles applying to family provision claims by grandchildren.
  • Plaintiffs who are not the spouse or child of the deceased must demonstrate there are factors that warrant the making of their application.
  • Although costs is discretionary, the general rule is that costs will follow the event.

In its recent decision in Chapple v Wilcox [2014] NSWCA 392, the NSW Court of Appeal set down a number of important principles for family provision claims by grandchildren under the Succession Act 2006 (NSW). The decision is also of significance to cases involving other categories of eligible persons, and the question of costs in family provision cases where the plaintiff’s claim is unsuccessful.

Factual background

The deceased left a will that provided for his whole estate to pass to his only child, Patricia Wilcox. She was also appointed sole executrix. The estate mainly comprised extensive pastoral holdings in the Walgett district.

The deceased’s two grandsons, Robert and Benjamin Wilcox, brought claims for family provision under the Succession Act (the Act). They also brought claims alleging a promissory estoppel arising from representations made by the deceased that they would inherit the properties – claims which were unsuccessful.

The family provision claims of both grandsons were successful at first instance, but went over for a further hearing on the question of what provision should be ordered. Benjamin’s claim settled in the meantime and was not the subject of the later appeal.

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