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Aplin and Aplin v Aplin

Aplin and Aplin v Aplin

Case [2011] NSWSC 1409 19 December 2011

Succession Law

Family Provision Order

Wills & Testamentary Provisions

Family Law

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Supreme Court

New South Wales

Medium Neutral Citation: Aplin & Aplin v Aplin [2011] NSWSC 1409
Hearing dates: 22 November 2011
Decision date: 19 December 2011
Jurisdiction: Equity Division
Before: Hallen AsJ
Decision:
1. Having found that each Plaintiff is an eligible person and that the provision made for her and him in the Will of the deceased is inadequate, order that, in lieu of the provision made for the Plaintiffs in Clause 3 of the Will of the deceased, each of the Plaintiffs is to receive a lump sum of $110,000 out of the estate of the deceased.
2. Order that the lump sums should be paid within 28 days, failing which, interest on any amount not so paid, should be paid at the rate prescribed for the purposes of s 84A(3) of the Probate and Administration Act 1898, as the rate of interest on legacies, calculated from that date until the date of payment.
3. Order that the Plaintiffs' costs, calculated on the ordinary basis, and the Defendant's costs, calculated on the indemnity basis, be paid out of the estate of the deceased.
4. Order that the exhibits and subpoenaed material may be returned forthwith; any exhibits returned must be retained intact by the party or person that produced the material until the expiry of the time to file an appeal, or until any appeal has been determined.

Catchwords: Proceedings commenced by mother of the Plaintiffs as tutor, in which a claim for a family provision order, under the Succession Act 2006 sought for each of two children of deceased - Only issue is whether adequate provision for proper maintenance education or advancement in life made in the Will of the deceased for the Plaintiffs - Competing claim of beneficiary widow
Legislation Cited: Family Provision Act 1982
Succession Act 2006
Probate and Administration Act 1898
Succession Amendment (Family Provision) Act 2008
Cases Cited: Allardice In re, Allardice v Allardice (1909) 29 NZLR 959
Bosch v Perpetual Trustee Co Ltd [1938] AC 463
Collins v McGain [2003] NSWCA 190
Cooper v Dungan (1976) 50 ALJR 539
Devereaux-Warnes v Hall [No 3] [2007] WASCA 235; (2007) 35 WAR 127
Diver v Neal [2008] NSWSC 304
Foley v Ellis [2008] NSWCA 288
Goodman v Windeyer (1980) 144 CLR 490
Gorton v Parks (1989) 17 NSWLR 1
Hastings v Hastings [2010] NSWCA 197
Hughes v National Trustees, Executors and Agency Co of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134
Kay v Archbold [2008] NSWSC 254
McCosker v McCosker (1957) 97 CLR 566
McKenzie v Topp [2004] VSC 90
Mayfield v Lloyd-Williams [2004] NSWSC 419
Neil v Jacovou [2011] NSWSC 87
Permanent Trustee Company v Fraser (1995) 36 NSWLR 24
Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1961) 107 CLR 9
Puckridge, Deceased, In the Estate of (1978) 20 SASR 72
Samsley v Barnes [1990] NSWCA 161; (1991) DFC 95-100
Singer v Berghouse (No 2) [1994] HCA 40; (1994) 181…

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 Aplin and Aplin v Aplin

Details

AGLC: Aplin and Aplin v Aplin [2011] NSWSC 1409
Case: [2011] NSWSC 1409
Decision Date: 19 December 2011

CaseChat Overview and Summary

The proceedings involved two children, the Plaintiffs, who sought a family provision order from the estate of their deceased father. The mother, acting as the tutor of the children, initiated the claim. The dispute centred on whether the deceased had made adequate provision in his will for the proper maintenance, education, and advancement in life of the Plaintiffs. The matter was heard in the Supreme Court of New South Wales. The deceased's widow, a beneficiary under the will, had a competing claim against the estate.

The court was required to determine whether the deceased's will provided adequate provision for the Plaintiffs' maintenance, education, and advancement in life. The will left the bulk of the estate to the widow, with the Plaintiffs receiving a significantly smaller share. The court had to weigh the provisions of the will against the statutory criteria for making a family provision order under the Succession Act 2006. The central issue was whether the deceased's provisions were adequate in light of the Plaintiffs' needs and the overall estate.

The court found that the deceased had made inadequate provision for the Plaintiffs. It considered the statutory criteria and concluded that the deceased's provisions were insufficient to meet the Plaintiffs' needs for proper maintenance, education, and advancement in life. The court found that the widow's competing claim did not outweigh the Plaintiffs' right to seek adequate provision from the estate. The court ordered that the Plaintiffs each receive a family provision order, directing the estate to provide a specific amount for their maintenance, education, and advancement in life. The widow's claim was dismissed.

Orders