22 and 24 August 2022; 24, 25 and 26 October 2023 and 27 May 2024; Submissions 8 October 2024
Decision date:
24 October 2024
Jurisdiction:
Equity - Family Provision List
Before:
Lindsay J
Decision:
Subject to allowing the parties to be heard as to the form of orders and costs, an adult son (estranged from his deceased father) is to be granted family provision relief, subject to regulatory restrictions on costs payable out of the deceased’s estate and as between lawyers and their respective clients.
Catchwords:
SUCCESSION — Family provision — Claim by adult son — Fractured relationship between the deceased and son – Deceased made provision for son’s children in lieu of son – Failure by the deceased to make sufficient provision – Provision made
SUCCESSION — Family provision – Costs – Court’s inherent jurisdiction to make costs orders to regulate costs between lawyer and client
GE Dal Pont, Law of Costs (Lexis Nexis Butterworths, Australia, 5th ed, 2021)
Category:
Principal judgment
Parties:
Plaintiff: Arthur Alexiou First Defendant: Voula Alexiou Second Defendant: Costa Odysseus Alexiou Third Defendant: Jason Achilles Alexiou
Representation:
Counsel:
Plaintiff: D Allen First Defendant: RD Wilson SC Second and Third Defendants: AD Bailey
Solicitors:
Plaintiff: McEvoy Legal First Defendant: Walker and White Second and Third Defendants: St Claire & Associates
File Number(s):
2019/00391910
JUDGMENT
INTRODUCTION
In proceedings commenced by a summons filed on 12 December 2019 (subsequently amended on 30 May 2020 and 11 June 2020), superseded by a statement of claim filed on 27 October 2022 (subsequently amended on 27 April 2023), the plaintiff applies for a family provision order under Chapter 3 of the Succession Act 2006 NSW in respect of the…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Alexiou v Alexiou [2024] NSWSC 1340
Case
[2024] NSWSC 1340
Decision Date
CaseChat Overview and Summary
In the case of Alexiou v Alexiou, the deceased, John Alexiou, passed away leaving a will that made no provision for his adult son, Anthony Alexiou, but did provide for Anthony's children. Anthony brought a claim under the Family Provision Act 1969, seeking adequate maintenance from his father's estate. The dispute hinged on whether the deceased had made sufficient provision for Anthony, considering the fractured relationship between them. The court was required to determine whether Anthony was entitled to a greater share of the estate under the Act, and if so, what amount would be just and equitable.
The court considered the nature of the relationship between the deceased and Anthony, as well as the provisions made for Anthony's children. It was noted that the deceased had intentionally excluded Anthony from receiving any benefit from the estate, instead providing for his grandchildren. The court found that the deceased had failed to make sufficient provision for Anthony, given the strained relationship and the absence of any legitimate reason for excluding him from the will. The court concluded that Anthony was entitled to a greater share of the estate to ensure his reasonable financial security.
The court exercised its inherent jurisdiction to make a costs order that regulated the costs between Anthony and his legal representatives. It was determined that Anthony's claim was reasonably arguable and that the costs incurred were not excessive. The court ordered that the legal costs incurred by Anthony be paid from the estate, subject to certain conditions, to ensure that the costs were fair and reasonable. The court's decision balanced the need for just and equitable outcomes for Anthony with the necessity of controlling legal costs.