The Supreme Court of New South Wales recently decided a claim made against the estate of Dr William Garrett.
Dr Garrett was one of Australia’s most outstanding scientists.
Among his many achievements, at just 31, he was instrumental in the development of ultrasound technology and its use in obstetrics.
As well as being of brilliant intellect, Dr Garrett was an incredibly kind and generous person.
Following the death of his wife, which had a profound effect on him, Dr Garrett began developing a new circle of friends.
Perhaps a little unusually for a man who would attend the opera and music recitals and was proficient in French, German and Italian, Dr Garrett began participating in trivia nights on Tuesday evenings at the Royal Hotel at Paddington.
It wasn’t long before the circle of friends, which included Mr Jason Gill, were having drinks at the Royal Hotel most nights.
How did Mr Gill come to live with Dr Garrett?
When Mr Gill made it known to Dr Garrett that he had fallen on hard times, Dr Garrett, true to his spontaneous and generous nature, was eager to provide a helping hand.
What was initially a simple invitation by Dr Garrett for Mr Gill to stay for a short period at his home ended with the “lodger” residing there for more than a decade.
As Dr Garrett’s physical and mental health started to decline, it became clear to his children that Mr Gill had no intention of leaving.
After Dr Garrett’s death, a five-year legal battle commenced.
What did Mr Gill claim against the estate?
Dr Garrett had a valid Will that specifically included a gift of $200,000 for Mr Gill.
However, Mr Gill made several further claims against Dr Garrett’s estate.
| Claim | What Mr Gill claimed |
|---|---|
| The Paddington property | Dr Garrett had agreed to give Mr Gill his two-storey terrace, worth approximately $2.5 million. |
| Mutual assumption | There was an understanding that, if Mr Gill continued to live with Dr Garrett as his companion and carer, Dr Garrett would leave the property to him in his Will. |
| Payment for care | Mr Gill claimed he was owed approximately $1.895 million for providing live-in care. |
| Further provision | Mr Gill claimed he was entitled to seek further provision from the estate as a dependant of Dr Garrett. |
What did the Court decide?
Ultimately, after a lengthy trial involving numerous witnesses, the Court dismissed all aspects of Mr Gill’s various claims.
A crucial factor in the outcome was the Court’s finding that Mr Gill was an unreliable witness. The Court rejected substantial parts of his evidence.
The Court also found that the alleged promise concerning the Paddington property had not been established. Mr Gill’s family provision claim also failed.
The decision was later appealed. In Gill v Garrett [2021] NSWCA 117, the NSW Court of Appeal dismissed Mr Gill’s appeal. :contentReference[oaicite:0]{index=0}
What does the case show about claims against an estate?
The case is a useful example of the difficulties that can arise when informal arrangements develop between a person and someone who lives with or cares for them.
Mr Gill had lived with Dr Garrett for many years and provided companionship and care. However, the Court did not accept that this meant Mr Gill was entitled to the property or to further provision from the estate.
The case also highlights the importance of evidence. Where a claim is based on an alleged promise, agreement or understanding, the Court will consider the evidence surrounding what was actually said and agreed.
Can a carer make a claim against a deceased estate?
Potentially. In NSW, certain people may be eligible to make a family provision claim under the Succession Act 2006 (NSW).
However, eligibility to make a claim does not mean that a person will necessarily receive further provision from an estate. The Court considers the circumstances of the particular case and the evidence available.
In Gill v Garrett, the Court considered Mr Gill’s circumstances and his relationship with Dr Garrett but ultimately rejected his claim for further provision. :contentReference[oaicite:1]{index=1}
Read the Succession Act 2006 (NSW).
What could Dr Garrett have done differently?
Dr Garrett had a valid Will, but his circumstances changed.
Dr Garrett, and his children, would certainly have benefited from formalising the arrangements and terms of Mr Gill’s occupancy in the home.
A formal agreement or properly documented arrangement may have helped clarify the parties’ intentions and avoid some of the uncertainty that ultimately led to the dispute.
It is certainly a “sobering” lesson for all concerned and a cautionary tale regarding informal arrangements that develop over many years.
Review your Will when your circumstances change
If your personal circumstances change, particularly your living arrangements, you may want to review your Will and obtain legal advice.
Our Wills & Estate Planning team can assist with making or updating your Will.
If you are dealing with a dispute involving a Will or deceased estate, our Will Disputes team can advise you about your options.