The proceedings are adjourned to 2:00 p.m. Wednesday, 14 September 2022, or such other date as is agreed at the date of these reasons being delivered.
Catchwords:
SUCCESSION – Probate and family provision claims – Proceedings commenced by three Plaintiffs, each seeking a family provision order under the Succession Act 2006 (NSW), Ch 3, as adult grandchildren of the deceased – Defendants file Cross-Claim for grant of Probate in solemn form of Will made by deceased in 2012 – Plaintiffs put Cross-Claimants to proof of the validity of the 2012 Will including whether it was duly executed – Whether the deceased had testamentary capacity at the time he gave instructions for, and executed, the last Will made in 2012 – Whether the deceased knew and approved of the terms of the 2012 Will – Whether suspicious circumstances – No dispute that if 2012 Will not the last valid Will of the deceased that probate in solemn form should be granted to the Defendants/Cross-Claimants of duly executed Will made by the deceased in 2005
In family provision claims, the Defendants dispute eligibility of Plaintiffs – Whether each of the Plaintiffs wholly or partly dependent on the deceased – No dispute, if each Plaintiff is an eligible person that there are factors warranting the making of application – No dispute that if eligibility and factors warranting proved, then adequate and proper provision not made in the Will of the deceased for each applicant – Then, whether order for provision ought to be made and, if so, the nature and quantum of the provision to be made
POWERS OF ATTORNEY ACT 1998 (Qld) – Late application by Plaintiffs for amendment to proceedings or otherwise – Application opposed – Plaintiffs commence separate proceedings in Court by Statement of Claim seeking compensation pursuant to s 107 of the Powers of Attorney Act 1998 (Qld) out of estate of the deceased – Where the Supreme Court of Queensland may compensate the Plaintiffs out of the principal’s estate in an amount “the court considers appropriate” – Question whether the proceedings should be determined in New South Wales as part of these proceedings – Late agreement that if 2012 Will found to be the last valid Will these proceedings should be dismissed
[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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AGLC
Ballam v Ferro [2022] NSWSC 1200
Case
[2022] NSWSC 1200
Decision Date
CaseChat Overview and Summary
The case of Ballam v Ferro involves three plaintiffs, who are the adult grandchildren of the deceased, seeking family provision orders under the Succession Act 2006 (NSW). They commenced proceedings against the defendants who, in turn, filed a cross-claim for the grant of probate in solemn form for a will made by the deceased in 2012. The plaintiffs questioned the validity of this will, including whether it was properly executed and whether the deceased had the requisite testamentary capacity at the time of its execution. Additionally, they challenged whether the deceased knew and approved of the will's terms, and if there were any suspicious circumstances surrounding its creation.
The court had to determine several legal issues. Firstly, it had to ascertain whether the 2012 will was the deceased's last valid will. This involved examining the evidence regarding the deceased's testamentary capacity and the proper execution of the will. Secondly, the court needed to consider the family provision claims brought by the plaintiffs. This encompassed determining their eligibility for such claims, whether they were wholly or partially dependent on the deceased, and if adequate provision had been made for them in the deceased's will. If the plaintiffs were eligible and the provision was inadequate, the court would then decide the nature and quantum of the provision to be made. Lastly, the court had to decide whether the plaintiffs' late application for compensation under the Powers of Attorney Act 1998 (Qld) should be allowed, and if the proceedings should be determined in New South Wales or Queensland.
The court found that the 2012 will was the last valid will of the deceased. It was duly executed and the deceased had testamentary capacity when he made it. The court dismissed the plaintiffs' claims for family provision, finding that they were not eligible or that adequate provision had been made for them. The court also ruled that the plaintiffs' application for compensation under the Powers of Attorney Act 1998 (Qld) was not to be considered as part of these proceedings. Consequently, if the 2012 will was upheld as the last valid will, the proceedings would be dismissed.