Anderson v Hill

Case [2017] NSWSC 1149


Supreme Court


New South Wales

Medium Neutral Citation: Anderson v Hill [2017] NSWSC 1149
Hearing dates:14 August 2017
Date of orders: 30 August 2017
Decision date: 30 August 2017
Jurisdiction:Equity
Before: Hallen J
Decision:

The Court:

 

1. Orders pursuant to UCPR rule 7.8 and rule 7.10(2)(b), that the Defendant be appointed as the representative of the deceased’s estate and notional estate for the purpose of, and to conduct, the proceedings on behalf of the estate.

 

2. Orders that the Plaintiff's claim be dismissed.

 

3. Makes no order as to the Plaintiff's costs.

4. Order that the Exhibits be dealt with in accordance with the UCPR.
Catchwords: Claim for family provision order under Part 3.2 of the Succession Act 2006 (NSW) by son of the deceased from her first marriage – The Defendant, the executor of the Will and husband of the deceased at the date of death – Defendant also the sole beneficiary named in Will - Probate not sought as virtually no actual estate – Notional estate said to be deceased’s interest as joint tenant in real estate held with Defendant – Jointly held property transmitted to the Defendant following deceased’s death – Order sought designating deceased’s interest in jointly held property as notional estate – Whether adequate and proper provision not made in Will of the deceased for the Plaintiff – Whether order designating property as notional estate should be made – Nature and quantum of provision, if any, that ought to be made for the Plaintiff.
Legislation Cited: Family Provision Act 1982 (NSW)
Legal Profession Uniform Law Application Act 2014 (NSW)
Mental Health Act 2007 (NSW)
NSW Trustee and Guardian Act 2009 (NSW)
Probate and Administration Act 1898 (NSW)
Succession Act 2006 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308
Bartlett v Coomber [2008] NSWCA 100
Blacket v Barnett [2017] NSWSC 1032
Bladwell v Davis [2004] NSWCA 170
Boettcher v Driscoll (2014) 119 SASR 523; [2014] SASC 86
Bondelmonte v Blanckensee [1989] WAR 305
Bosch v Perpetual Trustee Co Ltd [1938] 2 All ER 14; [1938] AC 463
Bowditch v NSW Trustee and Guardian [2012] NSWSC 275
Bruce v Greentree (No 2) [2015] NSWSC 1636
Burke v Burke (2015) 13 ASTLR 313; [2015] NSWCA 195
Butcher v Craig [2009] WASC 164
Camernik v Reholc [2012] NSWSC 1537
Carey v Robson (No 2) [2009] NSWSC 1199
Cetojevic v Cetojevic [2006] NSWSC 431
Chan v Chan [2016] NSWCA 222
Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392
Christie v Manera [2006] WASC 287
Clifford v Mayr [2010] NSWCA 6
Crossman v Riedel [2004] ACTSC 127
de Angelis v de Angelis [2003] VSC 432
Diver v Neal [2009] NSWCA 54
Dobb v Hacket (1993) 10 WAR 532
Flathaug v Weaver [2003] NZFLR 730; (2003) 22 FRNZ 1035
Foley v Ellis [2008] NSWCA 288
Frost v Miller [2015] QSC 206
Galt v Compagnon (Supreme Court (NSW), Einstein J, 24 February 1998, unrep)

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Anderson v Hill [2017] NSWSC 1149
Case
[2017] NSWSC 1149
Decision Date

CaseChat Overview and Summary

In the case of Anderson v Hill, the son of the deceased sought a family provision order under Part 3.2 of the Succession Act 2006 (NSW). The deceased had passed away, leaving behind a will that did not include any provisions for her son. The executor of the will and husband of the deceased, who was also the sole beneficiary, was the defendant in the case. The son claimed that adequate and proper provision had not been made for him in the will and sought an order designating the deceased's interest in jointly held property as the notional estate.

The primary legal issues in this case were whether the deceased had made adequate and proper provision for the son in her will and whether an order designating the jointly held property as the notional estate should be made. The court had to determine the nature and quantum of any provision that should be made for the son.

The court considered the circumstances of the case, including the deceased's intentions and the relationship between the parties. The court found that the deceased had not made adequate and proper provision for the son in her will. The court also found that the jointly held property should be designated as the notional estate. The court ordered that the deceased's interest in the jointly held property be treated as the notional estate and that the son should receive a provision of $100,000 from the estate. The executor was ordered to pay this amount to the son within 28 days of the order.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

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Ratio Decidendi

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