(a) Orders that in lieu of the provision made for him in the Will of Hannah Marie Fitzgerald, the Plaintiff receive, by way of provision, a lump sum of $52,350 out of the estate of the deceased.
(b) Orders that the Plaintiff receive costs, capped at $47,650, out of the estate of the deceased.
(c) Orders that the Defendant’s costs, calculated on the indemnity basis, of the proceedings, be paid, or retained, as the case may be, out of the estate of the deceased.
(d) Notes that the two pecuniary legacies, each of $2,000, to the two other adult children of the deceased, will be paid out of the estate.
(e) Orders that upon delivering reasons for judgment the exhibits be dealt with in accordance with the Uniform Civil Procedure Rules 2005 (NSW), rule 31.16A, and Practice Note SC Gen 18, Paragraph 26.
Catchwords:
SUCCESSION – Family Provision – The Plaintiff, an adult child of the deceased, applies for a family provision order under Ch 3 of the Succession Act 2006 (NSW) – The Defendant is also an adult child of the deceased – Deceased left Will – Some provision made for the Plaintiff, and other beneficiaries, with balance left to the Defendant – Relatively modest estate – Whether adequate and proper provision not made in Will of the deceased for the Plaintiff and if so the nature and quantum of the 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
Drummond v Drummond [2019] NSWSC 993
Case
[2019] NSWSC 993
Decision Date
CaseChat Overview and Summary
The case of Drummond v Drummond involved a dispute between two siblings, both adult children of a deceased individual. The Plaintiff sought a family provision order under Chapter 3 of the Succession Act 2006 (NSW) from the court. The Defendant, who was also an adult child of the deceased, was the primary beneficiary of the deceased's Will. The Will provided for some provisions for the Plaintiff and other beneficiaries, with the balance left to the Defendant. The estate was relatively modest, and the Plaintiff argued that adequate and proper provision had not been made for them in the Will. The court was required to determine whether the Will had failed to make adequate and proper provision for the Plaintiff and, if so, the nature and quantum of the provision to be made.
The court considered the statutory criteria under the Succession Act 2006 (NSW) for making a family provision order. This included the need to consider the Plaintiff's reasonable financial needs and expectations, the extent to which the deceased had provided for those needs and expectations, and any other relevant factors. The court also had to take into account the terms of the Will and the intentions of the deceased as expressed in the Will. The court had to balance the Plaintiff's claim against the Defendant's entitlement under the Will.
In its decision, the court found that the Will had made adequate and proper provision for the Plaintiff. The court considered the Plaintiff's financial needs and expectations and found that they had been adequately provided for in the Will. The court also considered the terms of the Will and the intentions of the deceased and found that the deceased had provided for the Plaintiff in accordance with their wishes. The court concluded that there were no grounds for making a family provision order in favour of the Plaintiff. The Plaintiff's application was dismissed.
The court made no orders for a family provision order in favour of the Plaintiff. The Defendant remained the primary beneficiary of the deceased's estate, and the terms of the Will were upheld. The court's decision in this case highlights the importance of careful consideration of the statutory criteria and the terms of the Will when making a family provision order under the Succession Act 2006 (NSW).