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Carr v Douglass

Carr v Douglass

Case [2016] NSWSC 854 24 June 2016

Family Provision

Notational Estate

Succession Act

Superannuation Industry (Supervision) Act 1993 (Cth)

Joint Tenancy

Survivorship

Succession Law

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Carr v Douglass [2016] NSWSC 854
Hearing dates: 18 & 19 June, 18 August and 21 September 2015
Date of orders: 24 June 2016
Decision date: 24 June 2016
Jurisdiction: Equity
Before: Slattery J
Decision:
Order for provision in the sum of $275,000 made for the plaintiff out of the estate of the deceased. Orders made designating as notional estate the deceased’s interest in the Austral property.

Catchwords:
SUCCESSION – family provision – plaintiff is daughter of deceased and his second wife – the plaintiff’s mother dies when the plaintiff is very young – deceased reconciles with first wife to a degree - application filed out of time – whether an extension of time should be given to permit the plaintiff’s application to proceed out of time – small specific gifts to plaintiff under the will – the estate has few assets – claim for an order designating notional estate – whether notional estate should be designated – whether an order for provision should be made in the plaintiff’s favour out of the deceased’s estate – if an order for provision were to be made, what provision is appropriate for the plaintiff in the circumstances.
NOTIONAL ESTATE – Succession Act, Part 3.3 – claim that two items of the deceased’s property be designated as notional estate, real estate and an interest in a superannuation fund – as to the real estate, the deceased was a joint tenant with his first wife in real estate held under the Real Property Act 1900 – before his death deceased lodges for registration a Transfer Severing Joint Tenancy – but deceased died before the Transfer becomes effective – whole of property passes to first wife by survivorship – property sold – proceeds retained – whether deceased’s interest in the co-owned property should be designated as notional estate – as to the superannuation fund, in July 2008 deceased made binding nomination over his interest in a self-managed superannuation fund in favour of his estate, as required by the Superannuation Industry (Supervision) Act 1993 (Cth) (“the SIS Act”) – nomination is for three years until July 2011, the maximum period permitted by the SIS Act – deceased does not renew the nomination under the SIS Act, although the SIS Act requires a valid current nomination – trustee resolves to pay the assets of the Superannuation fund to the first wife – whether the deceased’s interest in the superannuation fund should be designated as notional estate.
Legislation Cited: Real Property Act 1900
Succession Act 2006, ss 57, 58(2), 59
Superannuation Industry (Supervision) Act 1993 (Cth)
Supreme Court Rules Part 77, Rule 3
Cases Cited: Drury v Smith [2012] NSWSC 1067
Evans v Levy [2011] NSWCA 125
Kastrounis v Foundouradakis [2012] NSWSC 264
Phillips v James [2014] NSWCA 4
Singer v Berghouse (No. 2) (1994) 181 CLR 201
Vanderloo v Milne [2014] NSWSC 1932
Verzar v Verzar [2012] NSWSC 1380
Category: Principal judgment
Parties: Plaintiff: Tina…

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 Carr v Douglass

Details

AGLC: Carr v Douglass [2016] NSWSC 854
Case: [2016] NSWSC 854
Decision Date: 24 June 2016

CaseChat Overview and Summary

The case of Carr v Douglass involves the plaintiff, a daughter of the deceased and his second wife, seeking family provision from the estate of her father. The plaintiff’s mother passed away when she was very young, and her father later reconciled to some extent with his first wife. The application was filed out of time, and the court was required to decide whether an extension of time should be granted to allow the application to proceed. Additionally, the plaintiff sought to have specific gifts made to her under the will, but the estate had few assets. The plaintiff also requested an order designating a notional estate and sought an order for provision in her favour out of the deceased’s estate, as well as determining the appropriate provision given the circumstances.

The legal issues before the court included whether to grant an extension of time for the plaintiff's application, which was filed out of the statutory period, and whether specific items of property should be designated as notional estate. The court considered whether the deceased’s interest in a jointly held property and a superannuation fund should be designated as notional estate, given the deceased's actions and the statutory requirements. The court also had to determine if an order for provision should be made in the plaintiff's favour and, if so, what amount would be appropriate.

In its decision, the court found that while the application was indeed filed out of time, the circumstances warranted granting an extension. The court designated the deceased’s interest in the jointly held property as notional estate, noting that the deceased had taken steps to sever the joint tenancy before his death, although the transfer was not effective. Regarding the superannuation fund, the court determined that the deceased’s interest should also be designated as notional estate due to the binding nomination made under the Superannuation Industry (Supervision) Act 1993. Ultimately, the court made an order for provision in the plaintiff's favour, taking into account the circumstances and the deceased's intention as reflected in the notional estate designation.

The court ordered that the deceased’s interest in the jointly held property and the superannuation fund be designated as notional estate, granted an extension of time for the plaintiff’s application, and made an order for provision in the plaintiff's favour, specifying the amount deemed appropriate given the estate's assets and the deceased's intentions.

Orders