(a) Order that the time for making the Plaintiff's application be extended up to and including 6 August 2010, the date of the filing of the Summons.
(b) Having found that the Plaintiff is an eligible person and that the provision made for her in the Will of the deceased is inadequate, order that she is to receive, a lump sum of $45,000.
(c) Order that the lump sum should be paid within 42 days, failing which, interest on any amount not so paid, should be paid, such interest to be calculated at the rate prescribed on unpaid legacies in the Probate & Administration Act1898 from that date until the date of payment.
(d) Order that the burden of the provision made for the Plaintiff be borne by the Defendant.
(e) Order that property should be the subject of a notional estate order.
(f) If the parties are unable to reach agreement on the way in which the lump sum is to be paid, I shall, hear further submissions on designating the share in Alandar Pty Limited, or any other property, including the property at St Peters as notional estate, and whether I should order the Defendant to wind up that company, in order to satisfy the payment of the lump sum to her.
(g) I defer making any order for costs until after these reasons are delivered and the parties have an opportunity to consider them.
(h) Stand the proceedings over to a mutually convenient date for any argument as to the property to be the subject of the notional estate order and/or as to costs.
Catchwords:
SUCCESSION - Family provision order sought by daughter of the deceased who was left nothing in the Will - Application brought out of time - Estate distributed to the Defendant - Whether time for making application should be extended - Whether provision should be made for the Plaintiff - Whether notional estate order should 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.
Continue reading Gersbach v Blake
Sign in free to access the full text
Details
AGLC
Gersbach v Blake [2011] NSWSC 368
Case
[2011] NSWSC 368
Decision Date
CaseChat Overview and Summary
The case of Gersbach v Blake involved a dispute regarding a family provision order sought by the daughter of the deceased, who had been left nothing in the deceased's will. The application was brought out of the usual time frame after the estate had already been distributed to the defendant, who was the executor of the will. The primary legal issue before the court was whether the time for making the application should be extended and, if so, whether a provision should be made for the plaintiff. Additionally, the court considered whether a notional estate order should be made.
The court examined the circumstances leading to the delay in bringing the application and considered the statutory provisions governing family provision applications. It assessed the discretion available to the court under the relevant statute to extend the time limit and whether the circumstances justified such an extension. The court also evaluated the merits of the application, considering the needs of the plaintiff and the deceased's intentions as evidenced by the will and other relevant factors. In making its decision, the court balanced the statutory requirements with the equitable principles applicable to family provision claims.
The court concluded that the delay in bringing the application was significant but found that exceptional circumstances warranted an extension of the time limit. The court found that the plaintiff had established a need for provision from the estate and that the deceased's intentions, as expressed in the will, did not fully account for the plaintiff's circumstances. Consequently, the court exercised its discretion to make a family provision order, directing that the plaintiff be provided with a sum from the estate. Additionally, the court made a notional estate order to reflect the hypothetical position if the estate had not been distributed to the defendant. This decision ensured that the plaintiff received the provision she needed, despite the late application.