Gill v Smith - [2007] NSWSC 832

CITATION: Alison Jayne Gill and 2 Ors v Carolyn Smith [2007] NSWSC 832

HEARING DATE(S): 14, 19 and 20 June 2007

JUDGMENT DATE :
1 August 2007

JUDGMENT OF: Associate Justice McLaughlin

DECISION: 1. I order that each Plaintiff receive from the notional estate of the late Michael John Gill (“the Deceased”) a legacy in the sum of $100,000, each such legacy not to bear interest if paid on or before 1 September 2007, and if not so paid, to bear interest at the rates prescribed for unpaid legacies by the Wills, Probate and Administration Act 1898.; 2. I order that, to the extent of the totality of the foregoing legacies, the property situate at and known as 46 Lillihina Avenue, Cromer be designated as notional estate of the Deceased.; 3. I order that each of the aforesaid legacies be paid to the Public Trustee, to be held by him until each Plaintiff respectively attains the age of 18 years.; 4. I order that, in respect to each of the aforesaid legacies, the Public Trustee have a power of advancement in respect both to the corpus of such legacy and to the income thereon for the benefit each Plaintiff, until such Plaintiff attains the age of 18 years; 5. I reserve liberty to apply in respect to order 4 hereof.; 6. I order that the Defendant pay the costs of the Plaintiffs.; 7. I order that the maximum costs which the Plaintiffs may recover from the Defendant not exceed $40,000 and that such costs not include the costs of and incidental to following affidavits: affidavit of Judith Christine Gill sworn 10 June 2005; affidavit of Judith Christine Gill sworn 10 June 2006; affidavit of Wendy Lorraine Lambert sworn 19 June 2006; affidavit of Graeme Causon sworn 27 June 2006; affidavit of Nicola Estelle Causon sworn 29 June 2006.; 8. I direct the Registrar to transmit a copy of these reasons for judgment and orders herein to the Tutor for the Plaintiffs, Judith Christine Gill, 5 Mintwood Place, Molendinar 4214, Queensland; and to the Defendant, Carolyn Smith 46 Lillihina Avenue, Cromer 2099, New South Wales.; 9. The exhibits may be returned.

CATCHWORDS: Succession. Family Provision. Claim by three infant children. Financial and material circumstances of Plaintiffs. Whether Plaintiffs have been left without adequate provision for their proper maintenance, education and advancement in life. Testimentary provisions of Deceased in favour of Plaintiffs. Deceased after making his will dealt with assets so that they passed to Defendant, and in consequence Plaintiffs received nothing. Notional estate. Prescribed transactions. Competing claim of Defendant. - Practice and Procedure. Costs. Excessive costs incurred by each party. Capping order. Costs inflated by affidavits irrelevant and objectionable in form. Usual costs orders in Family Provision claims. Present litigation in nature of adversarial proceedings.

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

CASES CITED: Blore v Lang (1960) 104 CLR 124
Petrohilos v Hunter (1991) 25 NSWLR 343
Singer v Berghouse (1994) 181 CLR 201
Vigolo v…

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 Gill v Smith

Details

AGLC: Gill v Smith [2007] NSWSC 832
Case: [2007] NSWSC 832
Decision Date: 1 August 2007

CaseChat Overview and Summary

The case of Gill v Smith involved three infant children, who were the plaintiffs, bringing a claim against the defendant regarding provisions made in the will of their deceased father. The central issue in this family provision case was whether the plaintiffs had been left without adequate provision for their proper maintenance, education, and advancement in life. The dispute arose after the deceased made his will, which provided for the plaintiffs, but subsequently dealt with his assets in a manner that resulted in the plaintiffs receiving nothing. The deceased's actions post-will were pivotal, as they led to the plaintiffs' claim that they had not been adequately provided for under the will.

The legal issues before the court included the interpretation of the Family Provision Act and the assessment of the plaintiffs' financial and material circumstances. The court needed to determine whether the plaintiffs were left without adequate provision for their maintenance, education, and advancement in life, considering the deceased's testamentary intentions and subsequent actions. The court also had to consider the competing claim of the defendant, who argued that the plaintiffs had received adequate provision according to the will and that any subsequent actions by the deceased did not impact the will's validity or the plaintiffs' entitlement.

The court found that the plaintiffs had indeed been left without adequate provision for their proper maintenance, education, and advancement in life. The court examined the notional estate and considered prescribed transactions, ultimately ruling in favour of the plaintiffs. Regarding the excessive costs incurred by both parties, the court made a capping order, noting that the costs were inflated by affidavits that were irrelevant and objectionable in form. The court also considered the usual costs orders in family provision claims and the nature of adversarial proceedings in making its decision.

The court made orders that the plaintiffs were to receive adequate provision from the estate, and it made a capping order on the costs incurred by both parties. The court also ordered that the costs be assessed according to the usual principles applicable in family provision claims, taking into account the adversarial nature of the proceedings.

Orders