Same household and dependency will challenge fails

The case of Miller v Ryan; Payne v Ryan [2015] NSWSC 1713 involved family provision challenges to a Will by two nieces of the deceased.  The applications were heard together by Young AJA.  They were described as ‘one of the more unusual applications’ by His Honour.  The judgment is helpful.  It looks at the issues of same household, dependency and factors warranting the making of the application.  The judgment also comments on the problems with uncorroborated evidence of oral conversations made many years ago.


The deceased, Mervyn Sheehan, died on 24 May 2013.  His last Will was dated 4 July 2011.  He appointed his stepson James Ryan (the defendant) executor and sole beneficiary.  Probate was granted on 1 August 2013.  The gross distributable estate was estimated at $4.63 million.

The nieces were aged 70 and 72.  They lived with the deceased between 1946 - 1950, when they were both very young.  They applied for provision out of the deceased’s estate under the Succession Act 2006 (NSW).  They contended they were eligible persons under s. 57(1)(e) of the Act on the basis of being members of the same household as the deceased and that they were dependent on him.

Same household

The Court briefly examined the case law.  It showed that living in the same household had elements of permanency involving frequent and intimate contact, mutual support and community of resources.  The young age of the plaintiffs did not disqualify them establishing they were members of the same household.  It was noted by the Court that the legislation did not suggest that a person’s age or state of health prevented a person from establishing they were a member of the same household.


Establishing whether the nieces were dependent on the deceased involved looking at both financial and emotional dependence.  The Court was concerned that the plaintiffs were giving evidence of dependency dating back almost 70 years and there was no corroboration of that evidence.  It was held that, on the balance of probabilities, there was no dependency between 1946 and 1950.  Therefore, the plaintiffs had failed to establish that they were eligible persons.

Warranting factors

Although not necessary to do so as the Court had already determined the nieces were not eligible persons, the Court then went on to consider whether there were factors that warranted the nieces making their application. 

The issue was whether the nieces were sufficiently close to the prime categories of eligible person (spouse and children) that community expectations were such that the deceased had an obligation to them to consider their circumstances when making his Will.  It was put another way – were the nieces to be treated as if they were in the same category as children?

There were some general comments made about evidence in family provision matters as a result of the evidence presented in this case.  The Court indicated that statements made against the interest of a deceased person are not usually accepted unless there is some corroboration.  Corroboration was not a requirement, but if corroboration was absent, Courts needed to be very careful in accepting the evidence.  Also, statements of testamentary intention were relevant but had to be treated with some caution.  It was noted that it was not uncommon for testators to make statements of intention to people that those people would benefit simply to stop harassment and without any real intention of benefitting those people.

The fact was noted that the nieces had not been living in the same house as their uncle since 1950.  The nieces argued that it was a large estate and the sole beneficiary stepson was a 75 year old widower who had no need for extra provision.  The Court said the fact the stepson was in a strong financial position was not a significant reason for the testator to make provision for the nieces who were not close to him during his life and made no contribution to the wealth he had accumulated.

The Court was critical of some of the evidence of the nieces and their reliability as witnesses.  It held, on the balance of probabilities, there were no factors warranting the making of the application by the nieces.  Therefore, the nieces had failed to meet two of the three preliminary legislative requirements to establish their claim.

Oral evidence

There was evidence of conversations with the deceased about his testamentary intentions from the nieces and the husband of one of the nieces.  The evidence of those conversations was in identical words.  There was no corroboration of that evidence from a disinterested witness.  The Court commented that it was extremely unlikely that three people, after such a long period of time, would have exactly the same recall of conversations.  The witnesses denied collaboration.  The Court further commented that it was possible a misguided solicitor made the evidence of the conversations identical in an attempt to improve the strength of the evidence.


The Court dismissed the applications.  Young AJA was inclined to order costs against the nieces because of the speculative nature of the claims but gave counsel on opportunity to be heard on the costs issue.  Interestingly, Young AJA went on to say that if the nieces had established they were eligible persons (and presumably if there were factors warranting the making of the application), a legacy of $100,000 to each niece would have been appropriate in the circumstances of this estate.

Best practice

It is important to be aware of the general legal principles that apply in same household and dependency family provision applications and the legislative requirements that need to be met in such applications.  In preparing affidavit evidence, witness statements should be taken independently of other witnesses.  Affidavits should be in the words of the witness and not in the words used by the solicitor drafting the affidavit.

This publication is intended as a source of information only. No reader should act on any matter without first obtaining professional advice.

Author: Gerard Basha