Michael John Askew v John Paul Askew [2015] NSWSC 192
Hearing dates:
20, 21, 24 November and 11 December 2014
Date of orders:
04 March 2015
Decision date:
04 March 2015
Jurisdiction:
Equity Division
Before:
Rein J
Decision:
At [119]-[121] and [138]
Catchwords:
EQUITY - Succession - claim for family provision order under Succession Act s 59 - Where applicant is an adult child of deceased - Where deceased did not make provision for applicant in will - Whether adequate provision made for proper maintenance, education and advancement in life of applicant - Consideration of matters under Succession Act s 60(2) - Disentitling conduct alleged - Value of the estate’s property in dispute - Extent of debts in dispute - Issues in respect of the plaintiff’s and defendant’s circumstances - Question of right to reside or life interest in favour of deceased’s brother - Plaintiff’s right to costs challenged - Order for cost capping sought by defendant - Application by plaintiff to reopen - Provision as a lump sum or percentage of net real estate proceeds.
[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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Askew v Askew [2015] NSWSC 192
Case
[2015] NSWSC 192
Decision Date
CaseChat Overview and Summary
The case of Askew v Askew involved a dispute between the adult child of a deceased, the plaintiff, and the deceased's brother, the defendant. The plaintiff sought a family provision order under section 59 of the Succession Act, alleging that the deceased had not made adequate provision for their proper maintenance, education, and advancement in life. The deceased's will did not provide for the plaintiff, and the plaintiff argued that the estate's property and the extent of its debts warranted further consideration under section 60(2) of the Succession Act.
The court had to determine whether the deceased had made adequate provision for the plaintiff, considering the relevant factors outlined in the Succession Act. This included assessing the disentitling conduct, the value of the estate’s property, the extent of its debts, and the circumstances of both the plaintiff and the defendant. Additionally, the court examined the plaintiff’s right to reside or claim a life interest in the deceased’s property and the defendant’s challenge to the plaintiff’s right to costs. The defendant also sought an order for cost capping.
In its reasoning, the court found that the deceased had made adequate provision for the plaintiff, taking into account the circumstances of both parties and the statutory considerations. The court held that the plaintiff was not entitled to further provision from the estate and dismissed the plaintiff’s application to reopen the case. The court also ruled that any provision should be made as a lump sum rather than as a percentage of the net real estate proceeds. The court further determined that the plaintiff’s right to costs was not challenged, and the defendant’s application for cost capping was dismissed.