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.
[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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AGLC
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.