Lawyers Estate Planning Group

Chalik v Chalik (Part 1 of 5) – A war between two brothers over their mother’s inheritance results in that probate unicorn – a successful probate undue influence case. Along with testamentary capacity (fail), knowledge and approval (borderline pass), each son claiming the other owed money to the estate (1-0), family provision (fail), it was a four-of-a-kind hand of estate litigation.

I've divided my summary into 5 parts - links to parts 2-5 in the comments.

The late Margaret Chalik died in July 2021, aged 85. She had two sons, Gregory and Isaac. Her husband predeceased her in 1995.

Margaret made three wills after her husband's death – one in 1997 disinheriting Isaac entirely, which occurred at a time when Isaac was married to a daughter-in-law of whom Margaret disapproved. Her next will was made shortly thereafter, in 1998, when relations with Isaac were repaired. It divided her estate equally between her two children.

Most contentious of all was her last will, made in 2013, at a time when she had been living alone with Gregory for some time. By this time Gregory and Isaac's own relationship had badly deteriorated. Margaret was also experiencing troubling symptoms of dementia. Her 2013 will again disinherited Issac, leaving everything to Gregory.

On Margaret's death, Gregory propounded Margaret's 2013 will. Isaac applied to set it aside. In case Isaac succeeded, Gregory commenced separate family provision as a backup. Further, as is often the case, each son remembered amounts advanced by Margaret to the other, which they wished to characterise as loans, not gifts, and reclaim for the estate.

What emerges from the judgment of her Honour Henry J is a picture of Isaac having attained a measure of personal and financial independence from his parents which Gregory never quite managed, and came to resent. To the contrary, Gregory comes through as an obsessive, controlling and imposing figure who needed Margaret for money and accommodation as he, and she, aged. Gregory evidently came to believe he was entitled to his mother's estate because of his care for her, as vindication of his dislike for his brother, or on the misguided belief that Margaret resented Isaac as much as he did.

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