Unconscionable conduct by a beneficiary ' taking advantage of a special disability

• Published date: 11 September 2022
• Subject Matter: Family and Matrimonial, Wills/ Intestacy/ Estate Planning
• Law Firm: Rostron Carlyle Rojas
• Author: Mr Michael Sing

Challenging a will sometimes involves delving into the unpleasant world of unconscionable acts where people are under special disadvantages or disabilities.

When can payments by a father suffering from a mental disability made to his daughter prior to his death be challenged on the basis of unconscionable conduct?

The Full Court of the New South Wales Supreme Court of Appeal decision in Nitopi v Nitopi [2022] NSWCA 162 ("Nipoti") considered whether constructive notice of a special disability is sufficient to satisfy the requisite knowledge to successfully argue unconscionable conduct.

BACKGROUND

Edigio Nipoli (the deceased) was a successful businessman who died in 2014, leaving a sizable estate to be divided equally amongst his three children. Prior to his death, Edigio suffered significant short-term memory deficits and was eventually diagnosed with alcohol-related dementia in late 2008.

Between February 2008 and June 2010, Edigio made twelve payments to his youngest daughter Cristina (appellant) amounting to over 3 million dollars.

The deceased's son Giuseppe (respondent) sought repayment of the funds back into the estate. He alleged that Edigio suffered from a special disability and that the payments made to Cristina...