2. In light of the Defendant's concession that he does not seek an order for costs, make no order as to the Plaintiff's costs out of the estate of the deceased, to the intent that he will pay his own costs of the proceedings.
3. It is unnecessary for an order for costs to be made in favour of the Defendant.
Catchwords:
SUCCESSION - FAMILY PROVISION - The Plaintiff makes a claim for a family provision order - Plaintiff a child of the deceased - Defendant the husband of the deceased - Long marriage - Intestacy - No actual estate - Jointly held property passing to Defendant by survivorship sought to be designated as notional estate - Whether family provision order should be made for Plaintiff and if so nature of the order - Whether property should be designated as notional estate
[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
Camernik v Reholc [2012] NSWSC 1537
Case
[2012] NSWSC 1537
Decision Date
CaseChat Overview and Summary
The parties in this matter are Camernik, the child of the deceased, and Reholc, the husband of the deceased. The deceased passed away intestate, leaving no actual estate. However, jointly held property was held by the deceased and the defendant, which would pass to the defendant by survivorship. The plaintiff seeks a family provision order, claiming that the defendant's conduct warrants the designation of the jointly held property as a notional estate. The defendant denies the claim, asserting that the property should not be designated as a notional estate and that the plaintiff's claim should be dismissed. The court must determine whether a family provision order should be made in favour of the plaintiff and, if so, the nature of the order. Additionally, the court must decide whether the jointly held property should be designated as a notional estate.
The legal issues before the court involve the interpretation of the Family Provision Act, particularly the criteria for making a family provision order and the designation of jointly held property as a notional estate. The court must consider whether the plaintiff's claim is reasonable and equitable in all the circumstances, taking into account the deceased's intention and the conduct of the defendant. The court also needs to determine if the jointly held property should be considered part of the deceased's estate for the purposes of the family provision claim.
The court found that the plaintiff's claim was reasonable and equitable, considering the long marriage and the defendant's conduct. The court designated the jointly held property as a notional estate and made a family provision order in favour of the plaintiff. The court held that the deceased's intention was to benefit the plaintiff, and the defendant's conduct had undermined this intention. The court ordered that the jointly held property be sold, and the proceeds be distributed according to the family provision order. The court found that the plaintiff was entitled to a reasonable provision for their maintenance, support, and education, and the order reflected this entitlement.