Askew v Askew

Case [2015] NSWSC 192


Supreme Court


New South Wales

Medium Neutral Citation: 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.
Legislation Cited: Civil Procedure Act 2005 (NSW)
Crimes Act 1900 (NSW)
Crimes Amendment (Fraud, Identity and Forgery Offences) Act 2009 (NSW)
Succession Act 2006 (NSW)
Cases Cited: Alexander v Jansson
Andrew v Andrew [2012] NSWCA 308
Aubrey v Kain [2014] NSWSC
Australian Securities and Investments Commission v Rich [2006] NSWSC 826
Baychek v Baychek [2010] NSWSC 987 [22]
Bouttell v Rapisarda
Brown v Grosfeld
Burke v Burke [2014] NSWSC 1015
Chapple v Wilcox [2014] NSWCA 392
Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225
Dalton v Paull (No 2) [13]
Dinnen v Terrill [2007] NSWSC 1405
Dodds v Dodds [2013] NSWSC 1933
Dolman v Palmer
Edgar v Public Trustee for the Northern Territory 2011 NTSC 5
Evans v Levy [2011] NSWCA 125
Feeney v Feeney [2008] NSWSC 890
Foley v Ellis [2008] NSWCA 288
Goldberg v Landerer [2010] NSWSC 143
Goodman v Windeyer [1980] HCA 31
In the Estate of the Late Anthony Marras [2014] NSWSC 915
McCosker v McCosker [1957] HCA 82
Michele Firriolo v Bruno Firriolo & Anor [2000] NSWSC 1039
Moore v Moore [2004] NSWSC 587 [43]
Nichols v Hall [2007] NSWCA 356
Nudd v Mannix [2009] NSWCA 327
Palmer v Dolman [2005] NSWCA 361
Pontifical Society for the Propagation of the Faith v Scales
Re Keenan (1913) 30 WN (NSW) 214
Sergi (bnf Solowiej) v Sergi [2012] WASC 18
Shakespeare v Flynn [2014] NSWSC 605
Sherbourne Estate (No 2); Vanvalen v Neaves (2005) 65 NSWLR 268
Singer v Berghouse [1994] HCA 40; 181 CLR 201
Slack v Rogan; Palffy v Rogan [2013] NSWSC 522
Stern v Sekers; Sekers v Sekers [2010] NSWSC 59
Taylor v Farrugia [2009] NSWSC 801
Underwood v Gaudron [2014] NSWSC 1055
Urban Transport Authority of New South Wales v Nweiser
Vigolo v Bostin
Walker v Walker [1996] NSWSC 188
Wheatly v Wheatly [2006] NSWCA 262
White v Arizon Pty Ltd [2003] NSWSC 1051
Zagame v…

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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.

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