Annette Carol Gillett v Virginia Nelson (No. 2)

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.