(i) Having found that the Plaintiff is an eligible person; being satisfied that there are factors which warrant the making of her application; and that the provision made for her in the Will of the deceased is inadequate for her proper maintenance or advancement in life; order that she receive out of the estate of the deceased, a lump sum of $75,000.
(ii) Order that the provision made for the Plaintiff be paid out of the residuary estate.
(iii) Order that no interest be paid on the lump sum of money if it is paid within 14 days of the making of these orders, or within such other time as the parties agree; 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.
(iv) Order that the Plaintiff's costs, calculated on the ordinary basis, and the Defendant's costs, calculated on the indemnity basis, be paid out of the estate of the deceased.
SUCCESSION - FAMILY PROVISION - The Plaintiff, the stepdaughter of the deceased, seeks a family provision order out of the estate of the deceased under the Succession Act 2006 - The Defendant is the executrix to whom Probate granted - Dispute as to Plaintiff's eligibility - Dispute as to factors warranting the making of the application - If both eligibility and factors warranting the making of the application established, whether to make a family provision order - If order for provision made, nature of order - Relationship of Plaintiff and the deceased
[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
Doshen v Pedisich [2013] NSWSC 1507
Case
[2013] NSWSC 1507
Decision Date
CaseChat Overview and Summary
In the case of Doshen v Pedisich, the plaintiff, Doshen, sought a family provision order out of the deceased's estate. The deceased, Doshen's stepmother, left a will which did not include Doshen. The defendant, Pedisich, is the executrix to whom probate was granted. The central issue before the court was whether Doshen, as a stepdaughter, was eligible to seek a family provision order under the Succession Act 2006. Additionally, the court had to determine if the factors presented by Doshen warranted the making of such an application. Should these issues be resolved in Doshen's favour, the court would then consider the nature of any provision order.
The court addressed the eligibility of Doshen under the relevant statute, considering the relationship between the deceased and the plaintiff. It was established that the deceased and Doshen had a relationship akin to that of parent and child, which is a requirement for eligibility under the Act. The court further examined the factors presented by Doshen to justify the application, including the nature of the relationship, the extent of the deceased's property, and the means and needs of the plaintiff. The court found that the relationship was sufficiently close and that the deceased's estate was substantial, thereby satisfying the criteria for a family provision order.
Upon finding that Doshen was eligible and that the factors warranted the making of an application, the court turned to the appropriate nature of the order. The court weighed the circumstances of the case, including the contributions Doshen had made to the deceased's welfare, and the financial position of the deceased at the time of death. The court concluded that an order should be made, providing Doshen with a reasonable provision from the estate. The court's final order was that the executrix should provide Doshen with a specific sum from the estate of the deceased.