When can siblings make a claim on an estate?

As mentioned in previous articles, in order to make a claim on an estate for provision (or greater provision) from someone’s estate, the claimant must fall within the definition of an “eligible person” in accordance with section 57 of the Succession Act 2006 (NSW) (“the Act”).

In most instances, siblings of a deceased do not fall within this definition and are not entitled to a share of the deceased’s estate, with the NSW family provision laws generally protecting spouses, children, and dependents first.

However, there are exceptions – if a sibling can show that they were financially dependent on the deceased, or lived with them as part of the same household, they may have a right to claim further provision from their deceased sibling’s estate.

This can include adult siblings, in certain circumstances, as explored in the recent NSW Supreme Court case of El-Bayeh v El-Bayeh [2025] NSWSC 1177.

El-Bayeh v El-Bayeh [2025] NSWSC 1177

 

The background

The deceased passed away in 2023, leaving behind a wife, several adult children, ten siblings, and a substantial estate with a net value of approximately $44 million. The deceased’s Will left most of his wealth to one son (who was also the executor of the estate), while other family members received much smaller gifts, and one brother, Tony, received nothing.

Tony brought a family provision claim, arguing that he had been dependent on the deceased for most of his life, and had helped build the wealth that now formed his brother’s estate.

A lifetime of dependence

The court heard that the deceased was the eldest sibling and had taken on a father-figure role in the family, after the family had migrated from Lebanon in the 1960s. He controlled the family finances, decided how income was spent, and even managed his siblings’ pay and social security benefits. Tony worked in the family’s business, receiving a wage of $20 a day, while the deceased kept control of the business profits.

The deceased also bought properties in the names of his brothers, including Tony, on the promise that they would each own their own home. The deceased later arranged for Tony’s property to be sold, without giving Tony the proceeds, promising instead that Tony would receive a different property (also bought by the deceased, in Tony’s name).

What went wrong

In 2013, Tony became concerned that the deceased might try to deal with this property unfairly. On legal advice, Tony arranged for a caveat to be placed on the property title, to prevent any unauthorised dealings. Despite this safeguard, the deceased legally changed his name to the same name listed on the title, and sold the property, keeping the proceeds.

At the time of the claim, Tony had no home, limited savings, and health problems that prevented him from working full-time.

The court’s decision

The Court found that Tony had been financially and emotionally dependent on the deceased for most of his life, and that he was therefore an eligible person to claim under the Act. The Court agreed that there were strong moral and practical reasons why the deceased should have provided for Tony in the Will, and that the Will failed to make adequate provision for Tony’s proper maintenance and advancement.

The Court ordered that Tony receive $1.45 million from the estate, which was determined to be enough to buy a modest home, and meet his medical and living expenses. The executor (the deceased’s son) was also ordered to pay Tony’s legal costs.

Key takeaways

 While, generally, siblings can’t make a claim under NSW family provision laws, they may be able to if they were financially dependent on the deceased or part of the same household. In making a decision in a claim, courts will look at the whole relationship, including unpaid work, promises, and family dynamics. Even where the estate is large, a court can still intervene if a Will fails to provide fairly for someone who was genuinely dependent on the deceased.

This case shows that family provision law isn’t just about spouses and children. A lifetime of financial or emotional dependence can create rights for other family members – even adult siblings – if the Will doesn’t make proper provision. Careful and considered estate planning, taking into account all family and financial arrangements, can help avoid costly disputes like this one. If you need assistance with a claim on an estate, please reach out.

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