Legal Research
Cases
Alvarez v Matthews

Alvarez v Matthews

Case [2021] NSWSC 1551 26 November 2021

Family Provision

Notional Estate

Entitlement to Provision

Succession Law

No judgment structure available for this case.

Type to search within this case.

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Alvarez v Matthews [2021] NSWSC 1551
Hearing dates: 25, 26 November 2021
Date of orders: 26 November 2021
Decision date: 26 November 2021
Jurisdiction: Equity
Before: Parker J
Decision:
See [90]

Catchwords:
SUCCESSION – family provision – notional estate – deceased’s superannuation passed to children pursuant to nomination given before deceased’s death – application for designation of superannuation monies as notional estate to provide liquid funds – sufficient value in the estate to make provision for applicant in due course – application untenable
SUCCESSION – family provision – husband and wife – parties separate about twenty years before deceased’s death – parties register wife as separated for pension purposes – parties sever joint tenancy over matrimonial home, continuing to live in separate parts of it – husband’s will leaves estate including his half-share of the property to the parties’ three children in unequal shares – application by wife for provision – children agree on figure for provision in wife’s favour but disagree on its incidence – no settlement – wife must establish entitlement to provision – application refused

Legislation Cited:
Real Property Act 1900 (NSW)
Succession Act 2006 (NSW), ss 59, 88
Supreme Court Act 1970 (NSW), s 73

Cases Cited:
Bladwell v Davis [2004] NSWCA 170
Kalmar v Kalmar [2006] NSWSC 437
Marshall v Carruthers [2002] NSWCA 47
Palmer v Dolman [2005] NSWCA 361
Re Clissold (deceased) [1970] 2 NSWR 619
Re Mercer (deceased) [1977] 1 NZLR 469
Sarant v Sarant [2020] NSWSC 1686
Steinmetz v Shannon [2019] NSWCA 114

Category: Principal judgment
Parties: Angelica Mercedes Alvarez (Plaintiff)
Maribel Matthews (First Defendant)
Michael Angelo Alvarez (Second Defendant)
Aquiles Alvarez (Third Defendant)
Representation:
Counsel:
A Hill (Plaintiff)
RD Wilson SC (First Defendant)
R Colquhoun (Second and Third Defendants)
Solicitors:
Antunes Lawyers (Plaintiff)
L.Rundle & Co Solicitors (First Defendant)
George Bassil & Associates (Second and Third Defendants)

File Number(s): 2020/359410
Publication restriction: Nil

Judgment – EX TEMPORE

Revised and annotated; issued 2 December 2021

This is an application for a family provision order under s 59 of the Succession Act 2006 (“the Act”). The application concerns the estate of the late Aquilino Alvarez who died in February 2020 at the age of 73. He was survived by his wife and their three children.
The deceased was born in Spain in August 1946. His widow is Angelica Mercedes Alvarez. She was born in October 1945 in Peru. They married in September 1972 in Sydney.
Together the deceased and his wife had three children. They were: Maribel Alvarez, now Maribel Matthews, and Aquiles Alvarez, twins who were born in December 1972; and Michael Angelo Alvarez, born in March 1980. In the rest of this judgment, I will refer to the deceased’s widow as Mrs Alvarez. For convenience and without disrespect, I will refer to the three children by their given names.
The major asset of the family was the former family home, a house at Dobson Crescent in Ryde. The house consists of…

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.

Continue reading Alvarez v Matthews

Details

AGLC: Alvarez v Matthews [2021] NSWSC 1551
Case: [2021] NSWSC 1551
Decision Date: 26 November 2021

CaseChat Overview and Summary

In the case of Alvarez v Matthews, the dispute involved the interpretation of family provision claims under the Succession Act. The deceased had passed away and their superannuation was transferred to their children under a nomination made before the deceased's death. The applicant, presumably the surviving spouse or another family member, sought an order for the superannuation monies to be designated as part of the notional estate. The applicant argued that the estate contained sufficient value to provide for their needs in the future. The court was required to decide whether the application for the designation of superannuation as part of the notional estate was tenable, and whether the applicant had established a valid entitlement to a family provision claim.

The court examined the nature of the notional estate and the circumstances surrounding the deceased's superannuation. It considered the applicant's argument that the estate would have sufficient value to provide for their needs in due course, but ultimately found that the application for the designation of superannuation was untenable. The court also considered the husband and wife's separation and their arrangements for the matrimonial home and pension purposes. The husband had left his half-share of the property to the parties' three children in unequal shares, and the applicant sought a family provision claim. The children agreed on the amount of the provision but disagreed on its incidence, and no settlement was reached. The court found that the applicant had not established an entitlement to the provision, and therefore the application was refused.

The reasoning of the court was based on the specific provisions of the Succession Act and the circumstances of the case. The court found that the applicant had not established a valid entitlement to a family provision claim, and therefore the application was refused. The court also found that the designation of superannuation as part of the notional estate was untenable, as it would not provide the applicant with the necessary funds to meet their needs. The court's decision highlights the importance of establishing a valid entitlement to a family provision claim and the need for careful consideration of the specific provisions of the Succession Act in such cases.

The final orders of the court were that the application for the designation of superannuation as part of the notional estate was refused, and the application for a family provision claim was also refused. The court found that the applicant had not established an entitlement to either the designation of superannuation or a family provision claim, and therefore both applications were dismissed. The court's decision in this case serves as a reminder of the importance of establishing a valid entitlement to a family provision claim and the need for careful consideration of the specific provisions of the Succession Act in such cases.

Orders