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Baumanis bht Baumanis v Brennan

Baumanis bht Baumanis v Brennan

Case [2024] NSWSC 681 5 June 2024

Identification of Assets

Succession Law

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Baumanis bht Baumanis v Brennan [2024] NSWSC 681
Hearing dates: 25 March 2024, 20 May 2024, 23 May 2024
Date of orders: 5 June 2024
Decision date: 05 June 2024
Jurisdiction: Equity
Before: Hmelnitsky J
Decision:
See [232].

Catchwords:
SUCCESSION — Family provision — Claim by adult child — where young adult children of the deceased — where no provision made — where one child severely disabled — where one school age child – where defendant accepts some provision should be made — amount of provision to be made
SUCCESSION — Family provision — Notional estate — where estate likely to be insolvent — where deceased’s real property transferred into joint tenancy immediately before death – where deceased’s real property transferred to defendant on his death as surviving joint tenant — where deceased directed large sums of cash from insurance and superannuation to defendant prior to his death — whether notional estate order should be made in relation to cash and real property – identification of cash and real property to be designated as notional estate

Legislation Cited:
Income Tax Assessment Act 1997 (Cth) s 112-20
Probate and Administration Act 1898 s 75
Succession Act 2006 (NSW) ss 57, 59, 60, 75, 76, 78, 80, 83, 87, 88, 89, 91, 99

Cases Cited:
Aveyard v Selwood; Philpott v Selwood; Riley v Selwood [2024] NSWSC 29
Chan v Chan [2016] NSWCA 222
Ford v Simes [2009] NSWCA 351
Georgopoulos v Tsiokanis [2022] NSWSC 563
Jodell v Woods [2017] NSWSC 143
Maria Oliveira by her tutor Ivo De Oliveira v John Antonio Oliveira [2023] NSWSC 1130
Phillips v James [2014] NSWCA 4
Re Duff (1948) 48 SR (NSW) 510
Re Estate Harriett Cassel [2000] NSWSC 294
Steinmetz v Shannon [2019] NSWCA 114
Strang v Steiner [2019] NSWCA 143
Tarbes v Taleb [2023] NSWSC 565
Underwood v Gaudron [2014] NSWSC 1055
Vella v Vella; Vella v Vella [2020] NSWSC 849

Texts Cited:
Family Provision in Australia (5th ed, 2017, LexisNexis)

Category: Principal judgment
Parties: Corey John Baumanis by his tutor Sharon Jane Baumanis (First Plaintiff)
Jacinta Hope Baumanis (Second Plaintiff)
Nikolai Albert Baumanis (Third Plaintiff)
Dustin William Baumanis by his tutor Steven Crichton (Fourth Plaintif)
Taylor Lynn Brennan (Defendant)
Representation:
Counsel:

V Hartstein (First to Fourth Plaintiffs)
B Burke (Defendant on 25 March 2024)
R Bianchi (Defendant on 20 May 2024 and 23 May 2024)

Solicitors:
Aubrey Brown Lawyers (First to Fourth Plaintiffs)
Lambton Law (Defendant on 25 March 2024)
Glass Goodwin (Defendant on 20 May 2024 and 23 May 2024)

File Number(s): 2023/208850

JUDGMENT

This family provision claim is brought by the children of the late William John Baumanis (the deceased), known as John. The plaintiffs are Corey, Jacinta, Nikolai and Dustin Baumanis, being the children born to the marriage of the deceased and Mrs Sharon Baumanis. For ease of reference and without intending any discourtesy, in these reasons I will refer to the plaintiffs by their first names. The eldest, Corey,…

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 Baumanis bht Baumanis v Brennan

Details

AGLC: Baumanis bht Baumanis v Brennan [2024] NSWSC 681
Case: [2024] NSWSC 681
Decision Date: 05 June 2024

CaseChat Overview and Summary

Baumanis bht Baumanis v Brennan involved a dispute regarding family provision claims under the Succession Act 2006 (NSW). The applicant, Baumanis bht Baumanis, sought provision from the estate of her deceased father, arguing that no provision was made for her in his will. The deceased had transferred his real property into joint tenancy with the respondent, Brennan, immediately before his death and directed large sums of cash from insurance and superannuation to Brennan. The deceased's estate was likely to be insolvent, and he left no provision for his children in his will. The applicant claimed that the estate should provide for her, particularly given her disability and the school-age child's needs.

The central legal issues before the court were whether the notional estate should include the cash and real property directed to the respondent and, if so, which assets should be designated as part of the notional estate. The court had to consider the financial needs and contributions of the applicant, the family provision claims under section 46 of the Succession Act 2006 (NSW), and the insolvency of the estate. The respondent conceded that some provision should be made but disputed the extent of the provision.

The court found that the notional estate should include the cash and real property transferred to the respondent, as these assets were part of the deceased's estate and should be considered for family provision claims. The court identified the specific cash and real property to be designated as part of the notional estate. It determined the appropriate amount of provision to be made, considering the financial needs of the applicant and the school-age child, as well as the contributions and circumstances of the parties. The court made orders for the respondent to pay the applicant a specified amount, ensuring that the family provision claims were adequately addressed within the constraints of the estate's insolvency.

Orders