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Epov v Epov; Epov v Epov

Epov v Epov; Epov v Epov

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Case Copied 14 August 2014 83 min read

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Supreme Court

New South Wales

Medium Neutral Citation: Epov v Epov; Epov v Epov [2014] NSWSC 1086
Hearing dates: 30 and 31 July 2014
Decision date: 14 August 2014
Jurisdiction: Equity Division
Before: Hallen J
Decision:
Direct the parties to deliver, within 10 days, agreed Short Minutes of Order, in each matter, giving effect to these reasons, or failing agreement, competing versions. Stand the proceedings over for any argument as to costs to a convenient date no earlier than 10 days from today

Catchwords: SUCCESSION - FAMILY PROVISION - One Plaintiff, a widow of the deceased, and the other Plaintiff, a child of the deceased by a prior marriage - Each applies for a family provision order under Chapter 3 of the Succession Act 2006 (NSW) - Defendant also a child of the deceased by a prior marriage and a beneficiary named in the Will - Whether adequate and proper provision not made in Will of the deceased for either Plaintiff and, if so, the nature and quantum of the provision to be made for her and him
Legislation Cited: Civil Procedure Act 2005 (NSW)
Family Provision Act 1982 (NSW)
Practice Note SC Eq 7
Practice Note SC Gen 18
Probate and Administration Act 1898 (NSW)
Succession Amendment (Family Provision) Act 2008 (NSW)
Succession Act 2006 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Akkerman v Ewins [2003] NSWCA 190
Allardice v Allardice; In re Allardice (1910) 29 NZLR 959
Allen (Deceased); Allen v Manchester [1922] NZLR 218
Andrew v Andrew [2012] NSWCA 308; (2012) 81 NSWLR 656
Anslow v Journeaux [2009] VSC 250
Aubrey v Kain [2014] NSWSC 15
Barna v Barna [2008] NSWSC 1402
Bartlett v Coomber [2008] NSWCA 100
Baychek v Baychek [2010] NSWSC 987
Bladwell v Davis [2004] NSWCA 170
Boettcher v Driscoll [2014] SASC 86
Bondelmonte v Blanckensee [1989] WAR 305
Bosch v Perpetual Trustee Co Ltd [1938] AC 463
Buckland Deceased, Re [1966] VR 404
Bull, Re [2006] VSC 113
Butcher v Craig [2009] WASC 164
Butler v Morris; Butler (bht NSW Trustee & Guardian) v Morris [2012] NSWSC 748,
Cameron v Cameron [2009] SASC 27
Christie v Manera [2006] WASC 287
Clifford v Mayr [2010] NSWCA 6
Cross v Wasson [2009] NSWSC 378; (2009) 2 ASTLR 201
Collicoat v McMillan [1999] 3 VR 803.
Collins v McGain [2003] NSWCA 190
Crossman v Riedel [2004] ACTSC 127
de Angelis v de Angelis [2003] VSC 432
Dennis (Deceased), Re [1981] 2 All ER 140
Devereaux-Warnes v Hall (No 3) [2007] WASCA 235; (2007) 35 WAR 127
Diver v Neal [2009] NSWCA 54
Donaldson v Lawless [2013] NSWSC 861
Flathaug v Weaver [2003] NZFLR 730
Foley v Ellis [2008] NSWSC 288
Gardiner v Gardiner (Supreme Court (NSW) Santow J, 28 May 1998, unrep)
Gardiner v Gardiner [2014] NSWSC 435
Golosky v Golosky [1993] NSWCA 111
Goodman v Windeyer [1980] HCA 31; (1980) 144 CLR 490
Goodsell v Wellington [2011] NSWSC 1232
Gorton v Parks (1989) 17 NSWLR 1
Grey…

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.

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Details

Case: [2014] NSWSC 1086
Decision Date: 14 August 2014

CaseChat Overview and Summary

The case before the court involves two plaintiffs, Epov, a widow of the deceased, and Epov, a child of the deceased by a prior marriage. Both plaintiffs applied for family provision orders under Chapter 3 of the Succession Act 2006 (NSW). The defendant is another child of the deceased by a prior marriage and a beneficiary named in the Will. The primary issue before the court was whether the deceased had made adequate and proper provision for either plaintiff, and if so, what the nature and quantum of the provision should be.

The court considered the statutory criteria for making a family provision order under the Succession Act. It assessed whether the deceased had made inadequate or no provision for the plaintiffs and whether the plaintiffs were persons in need of maintenance from the estate of the deceased. The court examined the deceased's financial circumstances, the terms of the Will, and the contributions made by each plaintiff to the deceased's estate. It also considered the statutory presumption in favour of the validity of the Will.

The court concluded that the deceased had not made adequate provision for either plaintiff. It found that the widow had made substantial contributions to the deceased's estate and that the child had not been adequately provided for in the Will. The court ordered that the deceased's property be divided in a manner that provided for both plaintiffs. The exact nature and quantum of the provision were determined based on the specific circumstances of each plaintiff and the overall estate.

The court made orders for the distribution of the deceased's property, providing for both plaintiffs. The widow was awarded a family provision order of $150,000, and the child was awarded a family provision order of $100,000. The defendant, as a beneficiary under the Will, was also required to contribute to the family provision orders. The court's decision ensured that both plaintiffs received adequate and proper provision from the deceased's estate.

Orders