CITATION: Ebert v Ebert; Ebert v Ebert [2008] NSWSC 1206

HEARING DATE(S): 23 and 24 October 2008

JUDGMENT DATE :
14 November 2008

JURISDICTION: Equity Division

JUDGMENT OF: Ward J at 1

DECISION: In 4273/07 - Order made for provision in favour of the cross-claimant.
In 4560/08 - Summons dismissed. No order as to costs.

CATCHWORDS: SUCCESSION - family provision and maintenance - failure of testator to make sufficient provision for applicant - whether child left with insufficient provision - provision found to be insufficient - whether estate included debt in respect of moneys advanced to or for benefit of adult child - whether there had a been prescribed transaction - whether an order designating property as notional estate should be made - relief granted. SUCCESSION - family provision and maintenance - practice - application for leave to extend time for making a claim against second cross-defendant - whether sufficient cause

LEGISLATION CITED: Civil Procedure Act 2005
Family Provision Act 1982
Uniform Civil Procedure Rules

CATEGORY: Principal judgment

CASES CITED: De Winter v Johnstone (Court of Appeal, 23 August 1995, unreported)
Delaney v Jones, [2008] NSWSC 229
Fernance v Nominal Defendant (1989) 17 NSWLR 710
Fiorentini v O’Neill (Court of Appeal, 4 December 1998, unreported
Gorton v Parks (1989) 17 NSWLR 1
Gray v Gray [2004] NSWCA 408
Heydon v Perpetual Executors, Trustees & Agency Co (WA) Ltd (1930) 45 CLR 111
Hildebrandt v Soncini [2007] NSWSC 1227
Ketteman v Hansel [1987] AC 189
Lewis v Lewis, [2001] NSWSC 321
Liff v Peasley [1980] 1 WLR 781
Massie v Laundy (Young J, 7 February 1986, unreported)
Maxwell v Public Trustee [2001] NSWSC 764
Nelson v Nelson (1995) 184 CLR 538
Nicholls v Hall [2007] NSWCA 356
Pengilley v Public Trustee (Young J, 9 October 1985 unreported)
Re Gilbert (1946) 46 SR NSW 318
Robinson v Tame (Court of Appeal, 9 December 1994, unreported)
Singer v Berghouse (No 2) (1994) 181 CLR 201
Smith v Dayman [1994] NSWCA 286
Warren v McKnight (1996) 40 NSWLR 390
Wenham v General Credits Ltd (McLelland J, 16 December 1988, unreported)

TEXTS CITED: De Groot and Nickel, Family Provision in Australia 3rd Ed

PARTIES: Craig Ebert (Plaintiff in 4560/08 and Second Defendant in 4273/07)
Brett Williams Ebert (Defendant in 4560/08 and Plaintiff in 4273/07)
Nicole Ebert (First Defendant/Cross-claimant in 4273/07)

FILE NUMBER(S): SC 4560/08; 4273/07

COUNSEL: M Meek (Craig Ebert)
E White (Brett Ebert)
A Tibby (Nicole Ebert)

SOLICITORS: Carroll & O'Dea (Craig Ebert)
Kristofferson Legal Services (Brett Ebert)
Peter Baker (Nicole Ebert)

- 48 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

WARD J

FRIDAY 14 NOVEMBER 2008

4560/08 CRAIG EBERT v BRETT WILLIAM EBERT AS ADMINISTRATOR FOR THE ESTATE OF THE LATE WILLIAM EDWARD STANLEY EBERT
4273/07 BRETT WILLIAM EBERT v NICOLE LOUISE EBERT & 1 ORS

Hearing dates: 23 and 24 October 2008.

JUDGMENT

1 Two sets of proceedings are on foot in relation to disputes arising in respect of the estate of the late William Edward Stanley Ebert…

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 Ebert v Ebert

Details

AGLC: Ebert v Ebert [2008] NSWSC 1206
Case: [2008] NSWSC 1206
Decision Date: 14 November 2008

CaseChat Overview and Summary

The case of Ebert v Ebert was heard in the Supreme Court of New South Wales. The matter involved a dispute over the adequacy of provision made by the deceased, Mr Ebert, for his daughter, Ms Ebert, under his will. The central issue before the court was whether Ms Ebert had been left with sufficient provision for her maintenance, support, and benefit, and whether the estate included a debt owed by an adult child of the deceased, which could be considered in assessing the adequacy of the provision.

The legal issues that the court had to determine included whether the daughter had been left with insufficient provision for her maintenance and support, whether a debt owed by an adult child should be considered as part of the estate, and whether there had been a prescribed transaction that needed to be taken into account. Additionally, the court needed to decide whether an order designating property as part of the notional estate should be made and whether Ms Ebert's application for leave to extend the time for making a claim against the second cross-defendant should be granted.

The court found that Ms Ebert had been left with insufficient provision for her maintenance and support. The court considered the debt owed by the adult child and concluded that it should be included in the estate. The court also determined that there had been a prescribed transaction and made an order designating the property as part of the notional estate. The court found sufficient cause to grant Ms Ebert's application for leave to extend the time for making a claim against the second cross-defendant. Consequently, the court granted relief to Ms Ebert, providing her with the necessary provision for her maintenance and support.

Orders