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Annette Carol Gillett v Virginia Nelson (No. 2)

Annette Carol Gillett v Virginia Nelson (No. 2)

Case [2014] NSWSC 580 19 May 2014

Family Provision

Intention of the Testator

Adequate Provision

Notional Estate Orders

Compensatory Damages

Succession Law

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Supreme Court

New South Wales

Medium Neutral Citation: Annette Carol Gillett v Virginia Nelson (No. 2) [2014] NSWSC 580
Hearing dates: 17, 18, 19, 20 and 25 February 2014
Decision date: 19 May 2014
Jurisdiction: Equity Division
Before: Darke J
Decision:
Orders that the plaintiff receive a lump sum legacy of $175,000 and costs out of the estate or notional estate of the late Arthur Vincent Nelson.

Catchwords: SUCCESSION - family provision - large gifts of property made by wealthy testator - relatively small estate remaining - whether gift of shares incomplete so that shares form part of estate - relevant property transactions - whether gifts entered into with intention of denying or limiting provision out of estate - whether inadequate provision made out of estate for plaintiff - whether family provision order should be made - whether notional estate orders should be made in relation to distributions from estate - orders made for lump sum legacy and costs - Succession Act 2006 (NSW) s 80(2)(a)
Legislation Cited: Contaminated Land Management Act 1997 (NSW) s 21
Corporations Act 2001 (Cth) s 1071B(3)
Corporations Regulations Parts 7.11.06, 7.11.22
Duties Act 1997 (NSW) s 301
Succession Act 2006 (NSW) ss 59, 60, 61, 63, 75, 79, 80, 87, 88
Cases Cited: Alexander v Jansson [2010] NSWCA 176
Andrew v Andrew [2012] NSWCA 308; (2012) 81 NSWLR 656
Anning v Anning [1907] HCA 13; (1907) 4 CLR 1049
Aubrey v Kain [2014] NSWSC 15
Cooke v Fairbairn [2003] NSWSC 232
Corin v Patton [1990] HCA 12; (1990) 169 CLR 540
Hildebrandt v Soncini [2007] NSWSC 1227
Kastrounis v Foundouradakis [2012] NSWSC 264
McCosker v McCosker [1957] HCA 82; (1957) 97 CLR 566
Milroy v Lord [1861] All ER Rep 783; (1862) 4 De GF & J 264
Nabeth Taleb v National Australia Bank Ltd [2011] NSWSC 1562
Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201
Sydney Futures Exchange Ltd v Australian Stock Exchange Ltd (1995) 56 FCR 236
Vigolo v Boston [2005] HCA 11; (2005) 221 CLR 191
Category: Principal judgment
Parties:
Annette Carol Gillett (first plaintiff)
Virginia Nelson (first defendant)
Peter Andrew Stiles (second defendant)
Bryan Guersant Mellon (third defendant)
Naringtan Pty Ltd (fourth defendant)
Representation: Counsel: Mr J S Drummond (plaintiff)
Mr J B Simpkins SC, Mr P Knowles (defendants)
Solicitors: Terence Hartmann (plaintiff)
Watson Mangioni Lawyers (defendants)

File Number(s): 2011/191188

Judgment

Introduction

This case concerns the estate of Arthur Vincent Nelson, who died on 14 June 2010 at the age of 85. Mr Nelson was a very successful businessman who amassed, during his life, what could only be described as a fortune. However, as a result of various transactions effected by Mr Nelson, including the making of substantial gifts to his wife and to the trustee of a family trust, the Arthur Vincent Nelson Family Trust ("the AVN Trust"), the net value of his deceased estate was only about $1.2 million.

The plaintiff, Annette Gillett, is the third child of Mr Nelson's…

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 Annette Carol Gillett v Virginia Nelson (No. 2)

Details

AGLC: Annette Carol Gillett v Virginia Nelson (No. 2) [2014] NSWSC 580
Case: [2014] NSWSC 580
Decision Date: 19 May 2014

CaseChat Overview and Summary

Annette Carol Gillett brought a claim against Virginia Nelson, seeking family provision from the estate of their deceased father. The deceased made several large gifts of property, leaving a relatively small estate. Gillett argued that the gift of shares made by the deceased was incomplete, thereby forming part of the estate. She also contended that the gifts were made with the intention of denying or limiting her provision from the estate, and that she was inadequately provided for. The court was required to determine whether Gillett was entitled to a family provision order under the Succession Act 2006 (NSW), and whether notional estate orders should be made in relation to distributions from the estate.

The court examined the relevant property transactions and found that the deceased had indeed made large gifts of property, including shares, during their lifetime. However, the court concluded that these gifts were complete and valid, and therefore did not form part of the estate. The court also found that the deceased had made the gifts with the intention of benefiting their beneficiaries, and not with the intention of denying or limiting Gillett's provision from the estate. Nonetheless, the court found that Gillett was inadequately provided for, and that she was entitled to a family provision order. The court made orders for a lump sum legacy to Gillett and for costs.

The court considered whether notional estate orders should be made in relation to the distributions from the estate. The court found that such orders were not appropriate in this case, as the gifts made by the deceased were valid and complete. The court emphasised that the family provision legislation was not intended to be used as a mechanism for redistribution of wealth, but rather to ensure that family members who are in need and who have been inadequately provided for by a deceased person's will receive a reasonable provision from the estate. The court's orders provided Gillett with the necessary provision from her father's estate, while respecting the deceased's intentions and the validity of the gifts made during their lifetime.

Orders