The New South Wales Court of Appeal recently had to consider the issue of whether an applicant for provision out of an estate – who was not a spouse, child or dependant of the deceased – satisfied the “lived in a close personal relationship” eligibility requirement to qualify within the class of persons who can seek provision in that state, from an estate.

Eric Antarakis, who was born in Egypt but migrated to Australia in 1955, died on 22 May 2019 at age 85.

Should will makers include gifts for best friends who provide benefitsHe had lived in St Peters, Sydney on his own and left behind his home that was sold for $1.35 mil, personal possessions and a small amount of cash at the bank.

His 1978 will appointed brother Michael the executor and left everything to him and their mother Athina equally.

Athina had however predeceased Eric and by the time of Eric’s death, Michael had lost the capacity to administer the estate.

Michael’s wife Rita, as his attorney, was appointed as administrator of the estate in Michael’s stead.

Eric’s friend Simon Khadarou applied to the court for a share of the estate on the basis of their close personal relationship.

They had met in the early 2000’s when the panel beater helped Eric repair several vehicles, but for the last 5 years of Eric’s life – Simon claimed – they formed a close relationship.

They had lunch together most days. Simon provided cooked dinners prepared by his wife and dined with him most nights.

He also performed maintenance work at Eric’s home, grocery shopped with Eric weekly and assisted him cull hoarded possessions from his home.

In return, Eric had telephoned and visited Simon on occasions when he was hospitalised for panic attacks.

Simon claimed because the tasks he had performed for the deceased were those that would have been performed by someone living with Eric, he satisfied the prerequisite of having lived with him in a close personal relationship.

Justice Arthur Emmett in the first instance found that Simon and Eric “had established what might be characterised as a close friendship” and that Simon was providing Eric with domestic support and care.

In his view, it was not necessary for Simon to show that they had resided in the same residence but some history of having at least slept “under the same roof” was required.

This hadn’t occurred at all and Simon was thus, unable to establish the necessary condition of he and Simon having lived together. Nor had either of them regarded Eric’s home as a shared home.

The activities Simon relied on were “indicative of a close friendship, but no more,” the court ruled.

Simon appealed, representing himself, contending that he had been unable to co-habit with Simon as he had to care for his children. He also sought compensation for the works and care he had provided to the deceased.

In a unanimous judgement dismissing the appeal delivered by Justice Richard White, the NSW Court of Appeal held that the finding that Eric and Simon were not living together was clearly correct and that as a result Simon was not an eligible applicant to seek provision out of Eric’s estate.

The Court was unable to consider Simon’s claim for compensation as the appeal was only concerned whether he could establish a right to seek provision out of the estate.

If he had instead sought compensation from the estate for the works and care he provided, the result may have been different, depending on the nature of the evidence that was presented.

In Queensland such a claim does not arise. The class of applicants eligible to seek provision from an estate is limited to spouses, children, and defined dependants.  The Succession Act 1981 (Qld) ss 5AA and 40 defines:

  • “spouse” as the husband, wife, de facto partner, civil partner, and in this context a dependent former husband, wife, or civil partner;
  • “child” as meaning the deceased’s child, stepchild or adopted child; and
  • “dependant” as any person being wholly or substantially maintained by the deceased, and restricted to either a parent of the deceased, a parent of a surviving child under age 18 of the deceased, or a person under age 18.

To mitigate against potential claims against an estate, a will-maker should consider all dependent relationships and those with others who are close or who have rendered care and assistance.

Khadarou v Antarakis [2022] NSWCA 99 White JA Kirk JA Basten AJA , 10 May 2022 Read case