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Aubrey v Kain

Aubrey v Kain

Case [2014] NSWSC 15 30 January 2014

Family Provision

Notational Estate

Adequate and Proper Provision

Succession Law

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Supreme Court

New South Wales

Medium Neutral Citation: Aubrey v Kain [2014] NSWSC 15
Hearing dates: 9 December 2013
Decision date: 30 January 2014
Jurisdiction: Equity Division
Before: Hallen J
Decision:
Direct the parties within 14 days, to bring in Short Minutes reflecting these reasons and any agreement reached between them as to the designation of property as notional estate. Stand the matter over to a convenient date in February 2014.

Catchwords: SUCCESSION - FAMILY PROVISION - The Plaintiff, a son of the deceased, applies for a family provision order under Chapter 3 of the Succession Act 2006 - The Defendant is a close friend of the deceased - Deceased left Will - No provision for the Plaintiff - Explanation given - Small estate and notional estate - Whether adequate and proper provision not made in Will of the deceased for the Plaintiff and if so the nature and quantum of the provision to be made - Property to be designated as notional estate - Order for lump sum
Legislation Cited: Civil Procedure Act 2005
Family Provision Act 1982
Probate and Administration Act 1898
Property (Relationships) Act 1984
Real Property Act 1900
Succession Amendment (Family Provision) Act 2008
Succession Act 2006
Uniform Civil Procedure Rules 2005
Cases Cited: Alexander v Jansson [2010] NSWCA 176
Allardice v Allardice; In re Allardice (1910) 29 NZLR 959
Andrew v Andrew [2012] NSWSCA 308; (2012) 81 NSWLR 656
Attorney-General v Earl of Sandwich [1922] 2 KB 500
Bartlett v Coomber [2008] NSWCA 100
Blore v Lang (1960) 104 CLR 124
Bondelmonte v Blanckensee [1989] WAR 305
Bosch v Perpetual Trustee Co Ltd [1938] AC 463
Buckland Deceased, Re [1966] VR 404
Butcher v Craig [2009] WASC 164
Cetojevic v Cetojevic [2007] NSWCA 33
Christie v Manera [2006] WASC 287
Collicoat v McMillan [1999] 3 VR 803.
Collings v Vakas [2006] NSWSC 393
Collins v McGain [2003] NSWCA 190
Cooper v Dungan (1976) 50 ALJR 539
Crossman v Riedel [2004] ACTSC 127
Davidson v Sampson [2012] NSWSC 481
de Angelis v de Angelis [2003] VSC 432
Devereaux-Warnes v Hall (No 3) [2007] WASCA 235; (2007) 35 WAR 127
Diver v Neal [2009] NSWCA 54
Dunne v Dunne [2013] NSWSC 1911
Ebert v Ebert; Ebert v Ebert [2008] NSWSC 1206
Flathaug v Weaver [2003] NZFLR 730
Foley v Ellis [2008] NSWSC 288
Foye v Foye [2008] NSWSC 1305
Franks v Franks [2013] NSWCA 60
Frisoli v Kourea [2013] NSWSC 1166
Galt v Compagnon (Supreme Court (NSW), 24 February 1998, unrep)
Gardiner v Gardiner (Supreme Court (NSW), 28 May 1998, unrep)
Goodman v Windeyer [1980] HCA 31; (1980) 144 CLR 490
Gorton v Parks (1989) 17 NSWLR 1
Grey v Harrison [1997] 2 VR 359
Harrisson v Skinner [2013] NSWSC 736
Hawkins v Prestage (1989) 1 WAR 37
Hildebrandt v Soncini [2007] NSWSC 1227
Hughes v National Trustees Executors and Agency Co. of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134
Hyland v Burbidge [2000] NSWSC 12
Jelley v Iliffe [1980] EWCA…

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 Aubrey v Kain

Details

AGLC: Aubrey v Kain [2014] NSWSC 15
Case: [2014] NSWSC 15
Decision Date: 30 January 2014

CaseChat Overview and Summary

In Aubrey v Kain, the son of the deceased, the plaintiff, sought a family provision order under the Succession Act 2006, contesting the deceased's will which omitted any provision for him. The defendant was a close friend of the deceased, who had left a will that did not include the plaintiff. The court had to determine whether the deceased had made adequate and proper provision for the plaintiff and, if not, the nature and quantum of the provision to be made.

The court addressed several legal issues, including whether the deceased had made adequate and proper provision for the plaintiff. The court considered the size of the estate and the notional estate, which was a significant factor in determining the adequacy of the provision. The court also evaluated the explanation provided for the omission of the plaintiff in the will and examined the relationship between the deceased and the plaintiff, as well as the deceased and the defendant.

The court concluded that the deceased had not made adequate and proper provision for the plaintiff, taking into account the small size of the estate and the notional estate. The explanation given for omitting the plaintiff from the will was deemed insufficient, and the court found that the deceased had a duty to make proper and adequate provision for the plaintiff. As a result, the court ordered that the property be designated as a notional estate and made a lump sum payment to the plaintiff. The court's decision underscored the importance of making adequate and proper provision for family members under the Succession Act 2006.

Orders