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Carusi-Lees v Carusi

Carusi-Lees v Carusi

Case [2017] NSWSC 590 18 May 2017

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Supreme Court

New South Wales

Medium Neutral Citation: Carusi-Lees v Carusi [2017] NSWSC 590
Hearing dates: 10 and 11 April 2017
Date of orders: 18 May 2017
Decision date: 18 May 2017
Jurisdiction: Equity
Before: Hallen J
Decision:
The parties, within 14 days, are to consider whether any amendments to the proposed orders are required. The matter is stood over to a convenient date for any argument as to the nature and form of the orders proposed. Otherwise, any agreed amendments to the proposed orders may be forwarded to the Court, for consideration, in Chambers, or if no amendments are sought, the orders proposed will be entered and the adjourned date vacated.

Catchwords: SUCCESSION – FAMILY PROVISION – The Plaintiff, an adult child of the deceased, makes a claim for a family provision order – No dispute as to the Plaintiff’s eligibility as a child of the deceased – The Defendant the widow of the deceased and the sole executrix and beneficiary named in the Will - No application by Defendant for administration made at date of hearing – Whether grant of administration is necessary in order to deal with the Plaintiff’s application –– Virtually no actual estate – Whether the deceased’s interest in the proceeds of sale of jointly held property, or other jointly held property that passed by survivorship to the Defendant should be designated as notional estate – Property that may be designated as notional estate of large value – Significant provision made for the Plaintiff during the lifetime of the deceased - Competing financial claim advanced by the Defendant Whether family provision order should be made in favour of the Plaintiff, and if so, the nature and quantum of the provision to be made
Legislation Cited: Civil Procedure Act 2005 (NSW)
Family Law Act 1975 (Cth)
Family Provision Act 1982 (NSW)
Probate and Administration Act 1898 (NSW)
Succession Act 2006 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Alexander v Jansson [2010] NSWCA 176
Andrew v Andrew [2012] NSWCA 308; (2012) 81 NSWLR 656
Andrew v Andrew [2011] NSWSC 115
Bates v Cooke [2015] NSWCA 278
Boettcher v Driscoll [2014] SASC 86; (2014) 119 SASR 523
Bondelmonte v Blanckensee [1989] WAR 305
Borebor v Keane [2013] VSC 35
Bosch v Perpetual Trustee Co Ltd [1938] AC 463
Bowditch v NSW Trustee and Guardian [2012] NSWSC 275
Bowyer v Wood [2007] SASC 327; (2007) 99 SASR 190
Brimelow v Alampi [2016] VSC 135
Butcher v Craig [2009] WASC 164
Burke v Burke [2015] NSWCA 195
Chan v Chan [2016] NSWCA 222
Chapple v Wilcox [2014] NSWCA 392; 87 NSWLR 646
Christie v Manera [2006] WASC 287
Collicoat v McMillan [1999] 3 VR 803
Crossman v Riedel [2004] ACTSC 127
Diver v Neal [2009] NSWCA 54
de Angelis v de Angelis [2003] VSC 432
Flathaug v Weaver [2003] NZFLR 730
Foley v Ellis [2008] NSWCA 288
Goodman v Windeyer [1980] HCA 31; 144 CLR 490
Goodsell v Wellington [2011] NSWSC 1232
Grey…

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 Carusi-Lees v Carusi

Details

AGLC: Carusi-Lees v Carusi [2017] NSWSC 590
Case: [2017] NSWSC 590
Decision Date: 18 May 2017

CaseChat Overview and Summary

In the case of Carusi-Lees v Carusi, the Plaintiff, an adult child of the deceased, sought a family provision order against the Defendant, who was the widow of the deceased and the sole executrix and beneficiary named in the Will. The Plaintiff's application for a family provision order was made without an application by the Defendant for administration having been made at the time of the hearing. The central legal issue before the court was whether the grant of administration was a necessary prerequisite to dealing with the Plaintiff's application, particularly given the virtual absence of an actual estate. Additionally, the court had to determine whether the deceased’s interest in the proceeds of sale of jointly held property, or other jointly held property that passed by survivorship to the Defendant, could be designated as the notional estate. The value of the property in question was substantial, and the court had to balance this against the significant provision made for the Plaintiff during the deceased's lifetime and the competing financial claim advanced by the Defendant.

The court examined the principles established in previous cases, such as Re Dawson, where it was held that the absence of an actual estate did not preclude the making of a family provision order. In this case, the court found that the Defendant's interest in the jointly held property could indeed be designated as the notional estate for the purpose of the Plaintiff's application. The court also considered the competing claims and the significant provision already made for the Plaintiff during the deceased's lifetime. Ultimately, the court determined that a family provision order should be made in favour of the Plaintiff, considering the nature and quantum of the provision necessary to meet the Plaintiff’s reasonable financial needs, having regard to all the circumstances of the case.

Given the significant provision already made for the Plaintiff, the court carefully assessed the quantum of the order. It concluded that an order should be made for the Defendant to transfer a specified sum from the notional estate to the Plaintiff, ensuring that the Plaintiff's reasonable financial needs were met. The court's decision balanced the substantial notional estate against the financial claims of both parties, ultimately providing a fair resolution to the Plaintiff's application for a family provision order.

Orders