El-Bayeh v El-Bayeh [2025] NSWSC 1177 – ‘Father Figure’ Dependency and Family Provision Claim

Introduction

The recent NSW case of El-Bayeh v El-Bayeh [2025] NSWSC 1177 demonstrates that, in some circumstances, a claimant such as your brother or sister can bring a successful claim against an estate.

This case was specific to the provisions of the Succession Act 2006 (New South Wales) (the NSW Act). We will discuss at the end of the article, the potential for such claims in Victoria also.

Facts

The deceased, Youssef El-Bayeh (Youssef), died on 24 April 2023 at the age of 78.
He was survived by his wife, Yvonne El-Bayeh (Yvonne), and four of his five children, including his son Andrew El-Bayeh (Andrew), who was appointed as the executor of his estate and was the defendant in the proceedings. The deceased was also survived by ten siblings, one of whom was the plaintiff, his brother Tony El-Bayeh (Tony).
Youssef migrated from Lebanon in the 1960s with his parents, following which he effectively assumed the role of head of the household, as neither of his parents became proficient in English.
Youssef managed the family’s finances and affairs, including his siblings’ education and social matters and later operated a family takeaway business in Parramatta, from which he took receipt of the earnings.
Many of his younger siblings, including Tony, worked long hours in that business for little or no pay, while Youssef retained control of the earnings and financial decisions.
Over time, Youssef accumulated significant wealth, largely through the family business and by collecting both the earnings and social-security benefits of his siblings, including Tony’s.
From this wealth, Youssef acquired multiple properties. In 1989, he purchased a property in Tony’s name (the O’Connell Street property), and later persuaded Tony to sell it in exchange for another property (the Lanhams Road property). The Lanhams Road property was subsequently sold by Youssef without Tony’s knowledge and Tony received no benefit.

Youssef’s last Will dated 13 March 2023 (the Will)

Under the Will, Youssef left:

$1 million to each of his three daughters;
$50,000 to another brother Sayed El-Bayeh;
$100,000 to his wife, Yvonne; and
The residual estate, which was valued between $24- $44 million, to his son Andrew, subject to a life interest in one of his properties in favour of his wife Yvonne.

No provision was made for Tony under his Will.

Tony’s Circumstances

At the time of Youssef’s death, Tony had limited financial resources, and his assets were valued at around $105,000. He owned no real property and has relied heavily on family support. Tony resided with Youssef for most of his adult life, only moving out in 2010, at the age of 45, into shared rental accommodation.

The Claim

Following the death of Youssef, Tony brought a family provision claim against Youssef’s estate in the Supreme Court of New South Wales, seeking that provision be made to him, from the estate.

The Court’s Decision

In deciding that Youssef owed moral obligations to make provision for Tony under the Will, the Honourable Justice Hmelnitsky identified and relied on the following four (4) factors:

Eligibility under the NSW Act: His Honour determined that Tony was an eligible person within the meaning of s57(1)(e) of the NSW Act, as he had been dependent on Youssef to a significant degree for the whole of his childhood and for much of his early adulthood.
Factors supporting moral obligations in favour of Tony: His Honour relied on the following factors in support of Youseff’s moral obligations towards Tony:
1. Previously residing with the deceased: Tony had lived with his older brother for many years, starting from when he was a child in 1969 until around 2010. During that time, Tony relied heavily on his brother for a place to live and general support. However, he was not living with the deceased at the time of his death, nor was he intending on returning.
2. Acquisition of Properties in Recognition of Labour: The fact that Youssef purchased three properties, including one in Tony’s name, which demonstrates Youssef’s acknowledgement of his moral obligation to provide for his younger siblings, including Tony;
3. Sale of Property and Assurance Regarding Lanhams Road Property: When the O’Connell Street property was sold in 2002, Tony agreed to sign the relevant documents only after Youssef promised he would receive the Lanhams Road property in return; and
4. Wealth Accumulated from Family Contributions: Youssef’s significant wealth was derived in large part from the earnings and sacrifices of his siblings, including Tony and that it was reasonable to expect that someone in his position would recognise a moral obligation towards those whose labour contributed to his wealth.
Adequacy of provision: His Honour noted that Youssef failed to make adequate provision under his Will having regard to the following factors:
1. the overall nature of the relationship between Tony and Youssef;
2. Tony’s limited financial resources at the time making the claim;
3. the size of the estate, which is substantial; and
4. the character of the estate, which must in part be regarded as family wealth, rather than solely Youssef’s own wealth.
Appropriate order: A lump-sum payment of $1.45 million was ordered from the estate, reflecting a reasonable estimate of what Tony would need to purchase a modest home and live near his siblings.

Key Takeaways

Clear Documentation: Whilst there are many advantages to operating a family-run business, it is essential to have an appropriate structure in place to manage potential breakdowns in family relationships. One effective way to achieve this is through a shareholders’ agreement which clearly sets out the limitations and responsibilities of those running the business, while also protecting the rights and interests of family members involved in the business.
Large estates at risk: The greater the estate value is, the more likely the Court will intervene if the eligible claimant receives little or no provision under the deceased’s Will;
Consider Moral obligations: When preparing your estate plan, it is important to take into account any moral duties you may owe to individuals you have financially supported, lived with in the same household and/or for whom you have acted as a parental figure at some point in their life. Recognising these obligations can help ensure your estate plan reduces any potential disputes. Further, any promises made to individuals who may be eligible to claim against your estate can give rise to equitable remedies following your death, if those individuals have relied on the promises and suffered financial loss as a result.
Note: This is particularly relevant in NSW due to the specific eligibility criteria under the Succession Act 2006 (NSW), which includes individuals who were dependent on the deceased and lived in the same household at any particular time, not just at the time of death.
In contrast, under Victorian law, a person must have been living with the deceased at the time of death or had been in the past and was imminently about to commence living with them, had the death not occurred.
Sophisticated Estate Planning: If Youssef had implemented a sophisticated estate planning structure, such as transferring assets to a family trust, corporate entity, or self-managed superannuation fund during his lifetime, those assets would not have formed part of his estate and, therefore, would not have been subject to Tony’s claim. We, however, note that in NSW, this could nonetheless result in those assets being included in the deceased’s notional estate, if a family claim is brought against the estate in such jurisdiction.

Part IV claims in Victoria

In Victoria, the definition of an eligible claimant under section 90(k) of the Administration and Probate Act 1958 (Victoria) (the Victorian Act) is narrower than that of the NSW Act. Specifically, in Victoria, siblings must have been dependent on the deceased and part of the same household at the time of the deceased’s death or have lived in the same household in the past and likely would have again in the future had the deceased not died. This contrasts with the broader NSW definition, which allows claims from those who were dependent and part of the deceased’s household at any time, not just at the time of death.

Nonetheless, while section 90(k) of the Victorian Act sets a narrower threshold for siblings, requiring both dependency and shared household at the time of death or likely future cohabitation, the Victorian courts have shown increasing flexibility in other categories of claimants. For example, in Cotter v Tomassini [2025] VSC 518, the Court awarded provision to an adult daughter despite her lack of direct financial dependency at the time of death. This growing receptiveness to claims by adult children may signal a broader interpretive trend that could, in time, influence how eligibility under section 90(k) of the Victorian Act, is approached for dependant siblings as well.

If you have any questions about potential family provision claims on an estate, including queries around eligibility or the types of claims for provision or further provision that may be brought against an estate, please contact us on 03 9598 9489.