Equity - Succession & Probate List - Family Provision
Before:
Meek J
Decision:
Proceedings brought by (now deceased) first plaintiff dismissed, with no specific order made as to her costs. Orders otherwise substantially made in accordance with revised consent orders agreed to between remaining parties.
Catchwords:
SUCCESSION — Family provision — Claim by a de facto spouse of the deceased (first plaintiff) and her daughter (second plaintiff), who claimed to be a dependent member of the household of which the deceased was a member — Parties settled the proceedings with an amount of provision being agreed for both plaintiffs, as well as a specified amount of their costs to be paid out of the estate, subject to the fulfilment of certain conditions — First plaintiff died before orders were made giving effect to settlement — Defendant executrix by a notice of motion sought a declaration that the proceedings instituted by the first plaintiff abated by reason of her death and an order that those proceedings be dismissed with no order as to costs, which relief was reflected in a revised form of consent orders agreed to between the remaining parties
SUCCESSION — Family provision — Abatement of proceedings — Whether family provision order can be made in respect of a deceased applicant —Whether statutory right of an applicant to bring a family provision claim survives her death — Discussion of context of Ch 3 of the Succession Act 2006 (NSW), including purposes of family provision legislation and context of historical and recent family provision reforms in NSW — Discussion of textual indicators bearing upon nature of family provision claims — Determined that an order under Ch 3 of the Succession Act 2006 (NSW) can only be made in favour of a person then living —Determined that a right to bring a claim under Ch 3 of the Succession Act2006 (NSW) is personal and therefore not transmissible so as to survive the applicant’s death — Held that proceedings instituted by first plaintiff abated on her death and ought to be dismissed
SUCCESSION — Family provision — Interests of a potentially eligible person or affected beneficiary under an incapacity — Discussion of requirements for service of a Notice of Claim on a person under an incapacity — Discussion of issues regarding the representation of interests of persons under an incapacity — Whether interests of second plaintiff’s child (a minor) should be disregarded — Held that service of a Notice of Claim on second plaintiff, in an attempt to satisfactorily serve her child, was not adequate — However, in the circumstances of the case, in particular the relatively short time in which the child was potentially dependent upon the deceased and the fact that he is under the care of the second plaintiff who is providing for him, the…
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.
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Details
AGLC
Bowers v Matthews [2024] NSWSC 1353
Case
[2024] NSWSC 1353
Decision Date
CaseChat Overview and Summary
The case of Bowers v Matthews involved the estate of a deceased person, with the first plaintiff, Bowers, being the deceased's de facto spouse, and the second plaintiff, Matthews, being the daughter of Bowers. The dispute centered around family provision claims under the Succession Act 2006 (NSW), where both plaintiffs sought financial provision from the deceased's estate. The parties reached a settlement, agreeing on the amount of provision and the costs to be paid by the estate, contingent on certain conditions being met. Bowers passed away before the court could make orders to enforce the settlement. Matthews, as the executrix, sought a declaration that Bowers' proceedings had abated due to her death and that the proceedings be dismissed without costs, which was subsequently agreed upon by the remaining parties.
The court was required to determine whether a family provision order could be made in respect of a deceased applicant and whether the statutory right to bring such a claim survives the applicant's death. The court examined the context and purposes of family provision legislation and the nature of family provision claims. It concluded that an order under the Succession Act 2006 (NSW) could only be made in favor of a living person, and the right to bring a claim was personal and non-transmissible. Consequently, the court held that Bowers' proceedings abated upon her death and should be dismissed.
The court also addressed the adequacy of serving a Notice of Claim on the second plaintiff to satisfy the requirement of serving her minor child. It found that while the service on the second plaintiff was not adequate to serve the child, in the circumstances of this case, the interests of the child could be disregarded due to the short period of potential dependency and the fact that the child was under the care of the second plaintiff. Furthermore, the court considered whether the interests of the deceased's former de facto spouses and the adult child of the second plaintiff could be disregarded, finding that since both former spouses were likely deceased and the adult child had been served a Notice of Claim and did not wish to bring a claim, their interests could be disregarded.
The court further examined the jurisdiction to make a costs order in proceedings that had abated. It noted that while the court generally lacked jurisdiction to make a positive costs order in favor of or against a deceased applicant, the executrix's costs could be considered testamentary expenses to be paid from the estate. The costs incurred by the first plaintiff would be addressed by those interested in the administration of her estate, if at all, without a specific court order. The court ordered the executrix's costs to be paid from the estate on an indemnity basis.