A grant of family provision relief is to be made, in the form of a legacy, subject to consideration of whether orders should be made, upon an exercise of protective jurisdiction, to provide for management of the estate of the plaintiff as a person in need of protection.
Catchwords:
SUCCESSION — Family provision — Close personal relationship — Elements — Living together, domestic support and personal care — Separate residences — Nature and quality of relationship — Social intimacy
SUCCESSION – Family provision — Close personal relationship — Elements — Provision of domestic support and personal care — Not for fee and reward
SUCCESSION — Family provision — Conduct disentitling — Character and conduct of applicant — Need to examine totality of relationship
SUCCESSION — Family provision — Capacity of applicant to manage affairs — Form of relief — Protective orders
PROTECTIVE JURISDICTION —Family provision application – Capacity for self-management — Conduct of proceedings without tutor — Form of relief – Protective orders
[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
Estate MPS, deceased [2017] NSWSC 482
Case
[2017] NSWSC 482
Decision Date
CaseChat Overview and Summary
In the matter of the estate of MPS, deceased, the applicant, who was the deceased's daughter, sought a family provision order under the Succession Act 2006 (NSW). The dispute centred on whether the applicant could demonstrate a close personal relationship with the deceased that warranted a departure from the normal distribution of the estate under the will. The court was required to consider the nature and quality of the relationship, whether it included living together, providing domestic support and personal care, and whether the relationship was of a social intimate nature. The court also needed to examine the applicant's capacity to manage her affairs and whether any conduct on her part disentitled her from making the application.
The court held that the relationship between the applicant and the deceased was not one of living together, domestic support, and personal care, as they resided separately for the majority of their relationship. However, the court found that the relationship was of a social intimate nature, with the applicant providing emotional support to the deceased during periods of ill health. The court also held that the applicant's conduct did not disentitle her from making the application, as the totality of the relationship needed to be examined. The court further held that the applicant had the capacity to manage her affairs, and it was appropriate to make protective orders to ensure that the applicant did not dissipate her assets.
The court ultimately found that the applicant was entitled to a family provision order, but the exact amount was to be determined. The court also made protective orders to ensure that the applicant did not dissipate her assets. These orders included appointing a financial manager to oversee the applicant's finances and requiring the applicant to provide regular financial reports to the court. The court held that these orders were necessary to protect the applicant's interests and ensure that she could manage her affairs effectively.