Background
Maria Reissis, the adult daughter of Marsha Mersina Reissis, sought family provision from her late mother’s estate under the Succession Act 2006 (NSW). She was in severe financial need, with mental-health and substance-dependence issues and responsibility for three children. Her mother’s will gave superannuation benefits to her daughters and the residue to her parents, Maria and Gregory Xafellis.
The only substantial apparent estate asset was the proceeds of sale of a Padstow unit. The grandparents had paid the full purchase price and most ongoing expenses, while title was registered 99% to the deceased and 1% to Maria Xafellis. They cross-claimed, contending that the deceased held the unit, and therefore its sale proceeds, on resulting trust for them.
The Court’s Holding
Hammerschlag CJ in Eq extended time for the daughter to bring her family-provision application, but dismissed it. The Court declared that the sale proceeds were held on resulting trust for the grandparents and ordered their payment to them, subject to the orders concerning $5,000 retained in court.
Although a parent-to-child transfer can raise a presumption of advancement, the evidence rebutted it. The unchallenged evidence showed that the grandparents bought the unit to house their unwell daughter, intended to retain the beneficial interest as retirement savings, and arranged the 99%/1% title split for land-tax reasons. Because the proceeds were not estate property, there was no property from which a family-provision order could be made. The Court added that, had the proceeds been available, it would have made provision of $200,000 on trust for the plaintiff.
Key Takeaways
- Payment of the purchase price may support a resulting trust even where legal title is placed largely in a child’s name.
- The presumption of advancement is rebuttable by objective evidence of the purchaser’s actual intention.
- A family-provision claim fails where the apparent estate asset is beneficially owned by others and thus unavailable for provision.
Why It Matters
The decision illustrates that family-provision proceedings may turn first on whether property is truly part of the deceased’s estate. Registered title and an estate inventory did not overcome the evidence that the grandparents retained the beneficial interest.
It also underscores the practical importance of contemporaneous evidence about family property arrangements, particularly where a parent funds a home registered in an adult child’s name.