(i) Having found that the Plaintiff, Ian Lance Goldsmith, is an eligible person; that the proceedings were commenced within time; and that the provision made for him in the Will of the deceased is inadequate for his proper maintenance or advancement in life, he should receive, in lieu of that provision, a lump sum calculated as 27.5 per cent of the net proceeds of sale of the Cronulla property, that amount to be calculated after the payment of such costs of the proceedings as are ordered to be paid out of the estate of the deceased.
(ii) The provision made for the Plaintiff should be borne by the residuary estate.
(iii) No interest is to be paid on the lump sum, if it is paid within 14 days of the completion of the sale of the Cronulla property; otherwise, interest calculated at the rate prescribed by s 84A(3) of the Probate and Administration Act 1898, on unpaid legacies, is to be paid from that date until the date of payment of the lump sum.
(iv) Unless either party wishes to argue the question of costs, the Plaintiff's costs, calculated on the ordinary basis, and the Defendant's costs calculated on the indemnity basis, shall be paid out of the estate of the deceased.
(vi) Reserve consideration in respect of making consequential and ancillary orders for the purpose of giving effect to the family provision order.
Catchwords:
SUCCESSION - The Plaintiff makes a claim for a family provision order as a child of the deceased - Defendant also one of the children of the deceased and the executor appointed in the Will of the deceased, to whom Probate was granted - Other residuary beneficiary also a child of the deceased - Conduct of the Plaintiff towards the deceased in issue - Whether family provision order should be made for the Plaintiff and if so nature of the order
[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
Goldsmith v Goldsmith [2012] NSWSC 1486
Case
[2012] NSWSC 1486
Decision Date
CaseChat Overview and Summary
The parties involved in this case were the Plaintiff, who is a child of the deceased, and the Defendant, who is another child of the deceased and the executor appointed in the Will of the deceased, to whom Probate was granted. The dispute centred on the Plaintiff's claim for a family provision order under the Family Provision Act 1969. The Plaintiff argued that they were not adequately provided for by the deceased, whereas the Defendant, as executor, contested this claim on the basis of the deceased's testamentary intentions and the Plaintiff's conduct towards the deceased.
The primary legal issues the court had to address were whether the Plaintiff was in need of maintenance from the deceased's estate and if so, what would constitute adequate provision. The court also had to consider the Plaintiff's conduct towards the deceased and its impact on the claim. Furthermore, the court needed to decide whether the Defendant, as the executor, had discharged the onus of proving that the deceased had made reasonable financial provision for the Plaintiff.
In its reasoning, the court examined the provisions of the Family Provision Act 1969 and the relevant case law. It considered the Plaintiff's financial situation, the deceased's overall estate, and the nature of the relationship between the Plaintiff and the deceased. The court found that while the Plaintiff had some financial resources, they were not sufficient to meet their needs. It also noted that the Plaintiff's conduct towards the deceased was a significant factor. Ultimately, the court determined that the deceased had not made reasonable provision for the Plaintiff, and a family provision order should be made. The court ordered that the Plaintiff be paid a specified sum from the estate to adequately provide for their needs.