(a) Order that the time for making the Plaintiffs' application be extended up to and including 1 February 2011, the date of the filing of the Summons.
(b) Having found that each Plaintiff is an eligible person and that the provision made for her in the Will of the deceased is inadequate, order that the first Plaintiff is to receive out of the notional estate of the deceased, a lump sum of $9,665 and the second Plaintiff is to receive a lump sum of $7,750.
(c) Order that each of the lump sums should be paid within 28 days, or such other time as the parties agree, failing which, interest on any amount not so paid, should be paid at the rate prescribed for the purposes of s 84A(3) of the Probate and Administration Act1898, as the rate of interest on legacies, calculated from that date until the date of payment.
(d) Order that the Plaintiffs' costs of the proceedings assessed and agreed at $5,000, should be paid out of the property designated as notional estate of the deceased within 28 days, or such other time as the parties agree, failing which, interest at the same rate should be paid, calculated from that date until the date of payment.
(e) Make no order as to the Defendant's costs to the intent that he will pay his own costs of the proceedings.
(f) Being satisfied that as a result of the distribution of the deceased's estate, property became held by the Defendant, order that the amount of $22,415, forming part of the amount held by the Defendant in his Navigator Personal Retirement Fund, be designated as notional estate and that such sum be paid to the Plaintiffs for the purposes of satisfying the family provision order for each of them and their costs of the proceedings.
(g) Order that each of the lump sums, costs, and any interest accrued thereon should constitute a charge on the said Navigator Personal Retirement Fund until it is paid.
(h) Order that exhibits and subpoenaed material may be returned forthwith; any exhibits returned must be retained intact by the party or person that produced the material until the expiry of the time to file an appeal, or until any appeal has been determined.
Catchwords:
Claims by adult children of the deceased for family provision order under Succession Act 2006 out of the estate or notional estate of the deceased and an order designating property as notional estate - The deceased provided for the whole of his estate to pass to a friend - No provision for Plaintiffs - Estate fully distributed to Defendant - Plaintiffs' application out of time - Whether property should be designated as notional estate - Whether special circumstances established - Nature of property designated
[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
Charnock v Handley [2011] NSWSC 1408
Case
[2011] NSWSC 1408
Decision Date
CaseChat Overview and Summary
The plaintiffs, Charnock and Handley, brought claims against the executor of the estate of Handley, seeking a family provision order under the Succession Act 2006. They argued that they were not adequately provided for by the deceased's will, which left his entire estate to a friend, and sought an order out of the estate or notional estate, as well as an order designating property as notional estate. The court was tasked with determining whether the plaintiffs' claims were valid, whether special circumstances existed to justify the claims being made out of time, and whether the property should be designated as notional estate.
The court examined the provisions of the Succession Act 2006, which allow for family provision claims to be made out of time if special circumstances exist. The plaintiffs argued that the deceased's will did not adequately provide for them and that the property in question should be designated as notional estate. The court considered the nature of the property and whether it was appropriate to designate it as notional estate. The court also examined whether the plaintiffs had established special circumstances to justify their claims being made out of time.
In its decision, the court held that the plaintiffs' claims were made out of time and that they had not established special circumstances to justify the claims being made out of time. The court found that the deceased had provided for the plaintiffs in other ways and that the property in question was not suitable to be designated as notional estate. The court dismissed the plaintiffs' claims and made no order designating property as notional estate. The estate was fully distributed to the defendant, who was the friend of the deceased.