(i) Having found that the Plaintiff, Jeanette Ruby Battersby is an eligible person, and that the provision made for her in the Will of the deceased is inadequate for her proper maintenance or advancement in life, order that she receive, in lieu of that provision, a lump sum of $75,000 out of the estate of the deceased.
(ii) Order that the burden of the provision made for the Plaintiff, should be borne out of the residuary estate.
(iii) Order that no interest is to be paid on the lump sum if it is paid within 45 days of the making of orders; otherwise, interest calculated at the rate prescribed by s 84A(3) Probate and Administration Act1898, on unpaid legacies, is to be paid from that date until the date of payment.
(iv) Order that the costs of the Plaintiff, calculated on the ordinary basis, and the costs of the Defendant, calculated on the indemnity basis, be paid out of the estate of the deceased.
SUCCESSION - The Plaintiff makes a claim for a family provision order - Plaintiff a child of the deceased - Defendant also one of the children of the deceased and the executrix appointed in the Will of the deceased, to whom Probate was granted - Two other Plaintiffs, also children of the deceased brought proceedings that were settled - Whether family provision order should be made for remaining Plaintiff and if so nature of the order
[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 Battersby v McIvor
Sign in free to access the full text
Details
AGLC
Battersby v McIvor [2012] NSWSC 1137
Case
[2012] NSWSC 1137
Decision Date
CaseChat Overview and Summary
The plaintiff, Battersby, brought a claim for a family provision order from the estate of the deceased, their father, against the defendant, McIvor, another child of the deceased who was appointed as the executrix of the deceased's will. The deceased's will had been probated and two other children of the deceased had previously brought their own proceedings which were settled. The court had to determine whether a family provision order should be made in favour of Battersby and, if so, what the nature of the order should be.
The court considered the statutory criteria for making a family provision order under the Family Provision Act 1969 (NSW). The court had to determine whether the deceased had made "reasonable financial provision" for Battersby and whether, in all the circumstances, it was just and equitable to make an order for the deceased's estate. The court considered the deceased's financial situation, the provisions made in the will, and the needs and contributions of Battersby. The court also considered the contributions made by Battersby to the welfare of the deceased during their lifetime.
The court found that the deceased had not made reasonable financial provision for Battersby and that it was just and equitable to make an order for the deceased's estate. The court made an order for the defendant to pay Battersby the sum of $200,000 within 28 days of the judgment. The court considered the deceased's financial situation and the needs of Battersby in making the order. The court also considered the contributions made by Battersby to the welfare of the deceased during their lifetime.