The Court orders: (i) Having found that the Plaintiff is an eligible person, and that adequate provision for his proper maintenance, education or advancement in life, has not been made for him, in the Will of the deceased, that he receive a lump sum legacy of $130,000. (ii) That no interest is to be paid on the lump sum legacy, if it is paid within 14 days of receipt by the estate of the AMP superannuation death benefits, or 8 weeks from the date of these orders, whichever is earlier; otherwise, interest, calculated at the rate prescribed by s 84A(3) Probate and Administration Act 1898, on unpaid legacies, is to be paid from that date until the date of payment of the lump sum legacy. (iii) Subject to any submissions that may be made on costs, the Plaintiff’s costs, calculated on the ordinary basis, of the proceedings, and the Defendant’s costs, calculated on the indemnity basis, of the proceedings, are to be paid out of the estate of the deceased. (iv) That liberty is granted to any party to apply, in these proceedings, for consequential and ancillary orders for the purpose of, or with respect to, giving effect to, and implementing, the family provision order made in favour of the Plaintiff. (v) The Exhibits should be dealt with in accordance with the Uniform Civil Procedure Rules 2005 (NSW) (rule 31.16A and rule 33.10) and Practice Note No SC Gen 18 (Para 22).
Catchwords:
SUCCESSION – FAMILY PROVISION - Claim for family provision order under Part 3.2 of the Succession Act 2006 (NSW) – The first Defendant, the widow and sole beneficiary – The second Defendant the executor of the Will of the deceased – Probate granted – Actual estate consisting of real estate in which the first Defendant lives - Small amount of cash – Large amount of superannuation to whom paid is not determined - Whether adequate and proper provision not made in Will of the deceased for the Plaintiff – Nature and quantum of provision, if any, that ought to be made for the Plaintiff.
[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
Clark v Ro [2016] NSWSC 1877
Case
[2016] NSWSC 1877
Decision Date
CaseChat Overview and Summary
In the matter of Clark v Ro, the case involved a claim for a family provision order under Part 3.2 of the Succession Act 2006 (NSW). The Plaintiff sought a family provision order against the first Defendant, the widow of the deceased, and the second Defendant, the executor of the deceased's will. The deceased left a will in which the Plaintiff was not mentioned. The widow is the sole beneficiary of the estate, which consists of real estate where she resides, a small amount of cash, and a large amount of superannuation, the beneficiary of which is yet to be determined. The Plaintiff argued that adequate and proper provision was not made for him in the deceased's will and sought a determination of the nature and quantum of the provision that ought to be made for him.
The court was required to determine whether the deceased had made adequate and proper provision for the Plaintiff under the will and, if not, the nature and quantum of the provision that should be made. The court considered the statutory provisions under Part 3.2 of the Succession Act 2006 (NSW) and the relevant case law. The court examined the deceased's will, the nature and extent of the estate, and the relationship between the Plaintiff and the deceased. The court also considered the deceased's intentions and the circumstances surrounding the making of the will.
The court found that the deceased had not made adequate and proper provision for the Plaintiff under the will. The court noted that the Plaintiff had made a substantial contribution to the deceased's lifestyle and had a close relationship with the deceased. The court considered the Plaintiff's needs and the nature and extent of the estate. The court ordered that the Plaintiff be paid a sum of money from the estate, which was determined to be adequate and proper provision for the Plaintiff. The court also ordered that the executor pay the Plaintiff's costs of the application.