Estate Ameisen, Deceased - [2020] NSWSC 528

Supreme Court

New South Wales

Medium Neutral Citation: Estate Ameisen, Deceased [2020] NSWSC 528
Hearing dates: 7, 8 and 11 May 2020
Date of orders: 15 May 2020
Decision date: 15 May 2020
Jurisdiction: Equity - Family Provision List
Before: Lindsay J
Decision:
ORDER that the plaintiff’s application for a family provision order (under Chapter 3 of the Succession Act 2006 NSW) against the estate of his late mother be dismissed.

Catchwords: SUCCESSION – Family provision – Claim by adult son from deceased’s estate – substantial provision made for plaintiff in the deceased’s will and during her lifetime – Plaintiff not left without adequate provision for his proper maintenance, education and advancement in life – Claim for family provision order dismissed
Legislation Cited: Succession Act 2006 NSW
Cases Cited: Ameisen v Medical Council of NSW (2015) NSWCATOD 49
Andrew v Andrew (2012) 81 NSWLR 656
Bosch v Perpetual Trustee Co Ltd [1938] AC 463
Camemik v Reholc [2012] NSWSC 1537
Goodman v Windeyer (1980) 144 CLR 490
In re Allen [1922] NZLR 218
Medical Council of NSW v Ameisen [2020] NSWCATOD 18
Pontifical Society for the Propagation of the Faith v Scales (1962) 17 CLR 9
SGRO v Thomson [2017] NSWCA 326
Slack v Rogan; Palffy v Rogan (2013) 85 NSWLR 253
Texts Cited: -
Category: Principal judgment
Parties: Plaintiff: Paul Joseph Ameisen
Defendant: Helena Ameisen
Representation:
Counsel:
Plaintiff: K Morrissey
Defendant: M Klooster
Solicitors:
Plaintiff: GHS Legal
Defendant: Wise Legal

File Number(s): 2019/00170630

Judgment

INTRODUCTION

In these proceedings the plaintiff, a mature aged adult son, with a well deserved reputation within his own family as a poor manager of his own affairs (a spendthrift of sorts), applies to the Court for family provision relief (under Chapter 3 of the Succession Act 2006 NSW) against the estate of his late mother (Maria Ameisen, known as “Maya”, “the deceased”) at the expense of his only sibling, his sister (the defendant), a dutiful daughter. By her will, the deceased left the plaintiff property with a value in excess of $1.2 million. He wants more.
As a child of the deceased, the plaintiff is an “eligible person” within the meaning of section 57(1)(c) of the Succession Act 2006, with standing to apply for a family provision order: Succession Act, section 59(1)(a).
His application for family provision relief was made by a statement of claim filed on 31 May 2019, within the time limited by the Succession Act, section 58(2).
As a child of the deceased, he is not required by section 59(1)(b) of the Succession Act to prove that there are “factors warranting” the making of his application.
The questions for determination by the Court (viewed from a current day perspective) are:

whether the plaintiff was left without adequate provision for his proper maintenance, education or advancement in life out of the estate of the deceased (Succession Act, section 59(1)(c)); and

if so, what, if any, order for provision out of the estate of the deceased ought to be…

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: [2020] NSWSC 528
Decision Date: 15 May 2020

CaseChat Overview and Summary

The plaintiff, an adult son, sought a family provision order from the deceased's estate, claiming inadequate provision had been made for him under the will and during the deceased's lifetime. The deceased, Estate Ameisen, had made substantial provisions for the plaintiff in her will and had provided for him during her lifetime. The court was required to determine whether the provisions made were sufficient to meet the plaintiff's needs for proper maintenance, education, and advancement in life, and whether a family provision order was warranted under the relevant statute.

The court considered the provisions made in the will and the circumstances of the deceased and the plaintiff. It found that the deceased had made substantial provision for the plaintiff both in the will and during her lifetime, and that the plaintiff was not left without adequate provision for his proper maintenance, education, and advancement in life. The court emphasised that the provisions made were significant and reflected the deceased's intention to provide for the plaintiff's needs. The court concluded that the plaintiff's claim for a family provision order was not substantiated by the evidence.

Accordingly, the court dismissed the plaintiff's claim for a family provision order. The court recognised the deceased's efforts to provide for the plaintiff but found that the provisions made were sufficient to meet the plaintiff's needs. The court did not make any further orders regarding the estate.

Orders