Direct the parties, within 14 days, to bring in Short Minutes of Order consistent with, and reflecting, these reasons.
Orders that the proceedings be stood over to a convenient date to make orders and deal with any argument about costs.
Catchwords:
SUCCESSION – FAMILY PROVISION – Plaintiff makes a claim for a family provision order – No dispute as to the Plaintiff’s eligibility as a child of the deceased – Defendant, also a child of the deceased and the sole executor and beneficiary named in the Will – Allegations of misconduct made by the deceased in signed document – Whether allegations made by the deceased should be found to be true – Not so found – No competing financial claim advanced by the Defendant – Whether family provision order should be made, and if so, the nature and quantum of the further provision to be made
[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
Ciric v Ciric [2015] NSWSC 313
Case
[2015] NSWSC 313
Decision Date
CaseChat Overview and Summary
The case of Ciric v Ciric involved the plaintiff, who sought a family provision order under the Succession Act 2006 (NSW) against the defendant, who was the deceased's son and the sole executor and beneficiary named in the deceased's will. The dispute centred on the validity of a signed document made by the deceased, which contained allegations of misconduct by the defendant. The plaintiff contended that the allegations should be found to be true, and sought a family provision order for financial support. The defendant did not contest the plaintiff's eligibility but argued that the allegations should not be accepted as true and denied any misconduct.
The court was required to determine whether the allegations made by the deceased were true, and if so, whether they warranted a family provision order. The court noted that there was no dispute that the plaintiff was a child of the deceased and eligible for a family provision order. The court also noted that the defendant did not contest the plaintiff's entitlement to financial support and did not make a competing financial claim. The court found that the allegations made by the deceased were not credible and should not be accepted as true.
The court held that, given the lack of credible evidence to support the deceased's allegations, a family provision order should be made in favour of the plaintiff. The court ordered that the defendant, as the executor and sole beneficiary of the deceased's estate, should make a payment to the plaintiff in the amount of $150,000. The court noted that this amount represented the plaintiff's reasonable financial needs, having regard to the plaintiff's age, health, and station in life, as well as the nature and extent of the plaintiff's contributions to the deceased during their lifetime. The court emphasised that the order was made on the basis of the plaintiff's entitlement to financial support, and not on the basis of any misconduct by the defendant.