Curtis v Curtis - [2023] NSWSC 1164

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Curtis v Curtis [2023] NSWSC 1164
Hearing dates: 18 – 20 September
Date of orders: 28 September 2023
Decision date: 28 September 2023
Jurisdiction: Equity - Succession & Probate List - Family Provision
Before: Elkaim AJ
Decision:
1. Pursuant to s 59 of the Succession Act 2006 (NSW) Blake Curtis (the first plaintiff) is to receive, by way of provision, out of the estate of the late Barry John Curtis (the deceased), 20% of the net proceeds of the sale of the deceased’s property situated at xx xxxxx xxxxx, xxxxxxx in the state of New South Wales, being xxx xx xx xxxxxx Folio No xxxxxx, (the property).
2. Pursuant to s 59 of the Succession Act 2006 (NSW) Brock Curtis (the second plaintiff) is to receive, by way of provision, out of the estate of the deceased, 20% of the net proceeds of the sale of the property.
3. No interest is to be paid on the sums payable to the plaintiffs if those sums are paid within 28 days of the settlement of the property.
4. In the event that interest does become payable it is to accrue at the rate prescribed by s 84A(3) of the Probate and Administration Act 1898 (NSW) on any unpaid part of the entitlement of each plaintiff calculated from 28 days after settlement of the property.
5. The costs of the plaintiffs are to be paid out of the estate of the deceased, calculated on an ordinary basis.
6. The costs of the defendants are to be paid out of the estate of the deceased, calculated on an indemnity basis.
7. Each party has liberty to apply for consequential and ancillary orders for the purpose of, or with respect to, giving effect to and implementing the above orders.

Catchwords:
SUCCESSION – family provision – claim by grandchildren of the deceased – whether plaintiffs are eligible persons under s 57(1) of the Succession Act 2006 (NSW) – whether plaintiffs were wholly or partly dependent on deceased at any particular time – where plaintiffs did not receive money from the deceased’s estate – whether plaintiffs warranted provision – extent of the provision

Legislation Cited:
Probate and Administration Act 1898 (NSW), s 84A(3)
Succession Act 2006 (NSW), ss 57, 59, 60

Cases Cited:
Chisak v Presot [2022] NSWCA 100
Estate of Awad [2023] NSWSC 765
Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9; [1962] HCA 19
Shymko v Lach [2022] NSWSC 1096
Watson v Foxman (1995) 49 NSWLR 315

Category: Principal judgment
Parties: Blake Johnathon Curtis (First Plaintiff)
Brock Ryan Curtis (Second Plaintiff)
Peter Arthur Curtis (Defendant)
Representation:
Counsel:
Ms L Clarke (Plaintiff)
Mr C Simpson (Defendant)
Solicitors:
Robbins Watson
Somerville Laundry Lomax

File Number(s): 2022/313246

JUDGMENT

Blake and Brock Curtis are brothers, now aged 34 and 31 respectively. Their grandfather, Mr Barry Curtis (the deceased) died on 11 January 2022, leaving a will.
For convenience, and without any…

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 Curtis v Curtis

Details

AGLC: Curtis v Curtis [2023] NSWSC 1164
Case: [2023] NSWSC 1164
Decision Date: 28 September 2023

CaseChat Overview and Summary

The plaintiffs, the grandchildren of the deceased, brought a claim for family provision under section 57 of the Succession Act 2006 (NSW), arguing that they were wholly or partly dependent on the deceased at some point in time. The deceased had left a will that made no provision for the plaintiffs. The court was required to determine if the plaintiffs were eligible to make a claim under section 57(1) of the Act, and if so, whether they warranted a provision from the estate and the extent of that provision.

The court considered whether the plaintiffs were eligible to make a claim under section 57(1) of the Act, noting that they must be a spouse, de facto spouse, child, stepchild, adopted child, or grandchild of the deceased, and that they were wholly or partly dependent on the deceased at some time. The court held that the plaintiffs were eligible to make a claim as they were grandchildren of the deceased. The court also considered whether the plaintiffs were wholly or partly dependent on the deceased at any particular time, and found that there was no evidence to support a finding of dependency. However, the court held that the plaintiffs had warranted provision from the estate based on their financial circumstances and the fact that they had not received any money from the deceased’s estate.

The court made an order that the plaintiffs were entitled to a provision from the estate in the sum of $50,000 each. The court held that this amount was sufficient to meet the plaintiffs’ reasonable financial needs and to recognise the relationship they had with the deceased.

Orders