Goldsmith v Goldsmith

Case [2012] NSWSC 1486


Supreme Court


New South Wales

Medium Neutral Citation: Goldsmith v Goldsmith [2012] NSWSC 1486
Hearing dates:12, 13, 14 November 2012
Decision date: 06 December 2012
Jurisdiction:Equity Division
Before: Hallen J
Decision:

(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.

(v) The Exhibits should be dealt with in accordance with the Uniform Civil Procedure Rules 2005.

(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
Legislation Cited: Family Provision Act 1982
Probate and Administration Act 1898
Property (Relationships) Act 1984
Succession Act 2006
Succession Amendment (Family Provision) Act 2008
Uniform Civil Procedure Rules 2005
Cases Cited: Alexander v Jansson [2010] NSWCA 176
Allardice, In re, Allardice v Allardice (1909) 29 NZLR 959
Andrew v Andrew [2012] NSWCA 308
Auckland City Mission v Brown [2002] 2 NZLR 650
Bartlett v Coomber [2008] NSWCA 100
Blore v Lang (1960) 104 CLR 124
Bondelmonte v Blanckensee [1989] WAR 305
Bosch v Perpetual Trustee Co Ltd [1938] AC 463
Buckland Deceased, Re [1966] VR 404
Butcher v Craig [2009] WASC 164
Cairns v Cairns [2006] NSWSC 364
Christie v Manera [2006] WASC 287
Collins v McGain [2003] NSWCA 190
Cooper v Dungan (1976) 50 ALJR 539
Crossman v Riedel [2004] ACTSC 127
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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.

Orders

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Background

Background to the litigation

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Evidence

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Decision

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Ratio Decidendi

Legal Principle Established

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