The Meaning Of Close Personal Relationship: Khadarou v Antarakis | Armstrong Legal

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This article was written by Dr Nicola Bowes

Dr Nicola Bowes holds a Bachelor of Arts with first class honours from the University of Tasmania, a Bachelor of Laws with first class honours from the Queensland University of Technology, and a PhD from The University of Queensland. After a decade working in higher education, Nicola joined Armstrong Legal in 2020.

The Meaning Of Close Personal Relationship: Khadarou v Antarakis


In New South Wales, certain people have the right to contest a deceased’s person’s disposition of their estate. In addition to the standard eligibility categories, there is an allowance for someone who is in a “close personal relationship” with the deceased to dispute the will. The Supreme Court of NSW recently clarified the meaning of this eligibility category in the case of Khadarou v Antarakis [2021].

Contesting A Will In NSW

In New South Wales, a will is contested through a Family Provision Claim. The most common scenario is for a child of the testator to claim that their parent has not provided adequately for their support. However, under the Succession Act 2006 children are not the only people eligible to contest a will. The legislation also makes provision for applications from:

  • A current de facto partner or spouse of the deceased;
  • A former spouse of the deceased;
  • A dependent grandchild of the deceased;
  • A dependent member of the household of the deceased; and
  • A person who was in a close personal relationship with the deceased.

Of these categories, it is the close personal relationship that is perhaps the most ambiguous. A close personal relationship is a connection between two adults who may or may not be family members, and who are not married or in a de facto relationship with each other. Although the relationship can be romantic, it does not rise to the level of a bona fide domestic relationship required to establish de facto legal rights. More commonly, however, a close personal friend is someone not involved in a romantic relationship with the testator, who lived with and shared the life of a testator as a member of the same household.

In order for a person in a close personal relationship to be eligible under the Succession Act to contest a will in New South Wales, they must have been:

  • In a close relationship with the deceased; and
  • Living together with the deceased; and
  • Providing or receiving domestic support and personal care (not in exchange for payment or as part of a charitable undertaking).

Living Together

The most significant element of establishing a close personal relationship is to prove that the close personal friend was living with the testator prior to their death. The court will make an assessment based on whether the testator and the claimant regarded the same address as their home, shared the maintenance of the house, and made household decisions together.

Khadarou v Antarakis and the close personal relationship

In Khadarou v Antarakis [2021], the Supreme Court considered a Family Provision Claim from someone who was claiming eligibility on the basis of his “close personal relationship” with the deceased. The deceased died in 2019 leaving behind an estate worth over one million dollars and an older will (dated 1978) that left his entire estate to his brother. He had no surviving spouse or children and lived alone before his death at the age of 85.

The plaintiff filed for provision from the undistributed estate and raised the possibility of making a notional estate claim against the distributed assets. He claimed that he had developed a close friendship with the deceased that lasted for years before his death. A foundation of his claim was that he acted as a supportive “family member” to the deceased because his actual family did not provide care or support. In his affidavit, the plaintiff outlined the assistance he had provided to the deceased over the years, including the provision of home-cooked meals, shopping trips, the performance of maintenance on his car and property. The plaintiff emphasised that he spent nearly every day in the testator’s company. In addition, the deceased nominated the plaintiff as his next of kin to call when he was admitted to hospital.

The administrator of the estate denied that the plaintiff was an eligible person who was a close personal friend of the deceased, and emphasised that the plaintiff had not made a convincing case for provision from the estate. Witnesses testified that some of the plaintiff’s claims were without foundation or inaccurate.

The court examined whether the plaintiff was, according to the statutory definition, in a close personal relationship with the deceased. The court was convinced that the plaintiff provided fairly regular care and support to the testator as his friend. However, there was no evidence that the two shared the same residence. The plaintiff admitted that he never slept at the deceased’s residence but he nevertheless contended that they were “living together”, as he:

  • Carried out maintenance on the house;
  • Removed waste from the house caused by the deceased’s hoarding;
  • Took the deceased shopping for food and essential items;
  • Checked on the deceased when he was distressed at night and provided care and support; and
  • Mended and modified furniture in the house for the deceased’s comfort.

The court concluded that these factors indicated a close friendship but did not rise to the level of “living together”. While the plaintiff spent a great deal of time visiting the deceased and caring for him in the home, he had his own home where he resided with this wife and children and where he slept each night. The court ultimately dismissed the plaintiff’s claim on the basis that he was not an eligible applicant, and ordered that he pay the administrator’s costs of defending the action.

As this case demonstrates, it can be very difficult to substantiate the elements of a close personal relationship. A claimant must have evidence to support an assertion of a close relationship, where both parties lived together, and where at least one party provided care and support. The contested wills team at Armstrong Legal can provide a realistic assessment of your chances of successfully making a claim on the basis of a close personal relationship. Please contact or call 1300 038 223 to discuss your prospective claim.

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