Having found that the Plaintiff is an eligible person and that the provision made for him in the Will of the deceased is inadequate, order that the Plaintiff receive, by way of provision, an interest-free advance on his share of the deceased's estate, of $200,000.
The lump sum is to be repaid to the estate, in whole or in part, from the Plaintiff's share of the deceased's estate when the Princes Highway property is sold, in whole or in part.
If the total of the Plaintiff's share of the deceased's estate, when ultimately realized, is insufficient to repay the whole of the amount of the advance, then he is not required to repay the balance remaining, which balance shall constitute part of the family provision order by way of absolute entitlement.
The Defendants should be allowed an opportunity to decide the manner in which they will satisfy the payment of the advance, and, therefore, which part of the estate is to bear the burden of the order.
Part of the advance ($20,000) should be paid within 14 days of the delivery of reasons, and the balance within 28 days of the making of orders reflecting the reasons, or within such other time as the parties agree, failing which, interest on any amount not so paid, should be paid, such interest to be calculated at the rate prescribed on unpaid legacies by the Probate & Administration Act1898, from that date until the date of payment.
The Plaintiff should vacate possession of the Princes Highway property simultaneously with the receipt of the balance ($180,000) of the amount the subject of the advance.
If the parties are unable to reach agreement on the way in which the lump sum is to be paid, I shall hear further short submissions on which property should be designated as notional estate, and any consequential orders.
Subject to any argument about costs, I would propose to make the usual order for costs.
The Exhibits should be dealt with in accordance with the Uniform Civil Procedure Rules and the Court Books may be returned.
The parties are to bring in short minutes.
The proceedings are adjourned to a date to be fixed.
Catchwords:
The Plaintiff, an adult child of the deceased, applies for a family provision order under Chapter 3 of the Succession Act 2006 - Defendants named in the Summons are also adult children of the deceased - The lessee of land owned by the deceased at the date of her death joined as party Defendant - Whether provision made in Will of deceased inadequate and if so, whether order in favour of the Plaintiff 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.
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AGLC
Goodsell v Wellington [2011] NSWSC 1232
Case
[2011] NSWSC 1232
Decision Date
CaseChat Overview and Summary
In the matter of Goodsell v Wellington, the plaintiff, who is an adult child of the deceased, sought a family provision order under Chapter 3 of the Succession Act 2006. The defendants named in the summons are also adult children of the deceased, and the lessee of land owned by the deceased at the date of her death was joined as a party defendant. The primary concern was whether the provision made in the deceased's will was inadequate and, if so, whether an order in favour of the plaintiff should be made. The court was required to determine whether the deceased's will provided sufficient maintenance for the plaintiff, given the estate's circumstances at the time of the deceased's death.
The legal issues the court had to decide involved the interpretation of the deceased's will, the adequacy of the provisions made for the plaintiff, and the discretion of the court in making a family provision order. The court needed to consider the statutory criteria outlined in the Succession Act 2006, specifically s 47(1), and weigh the various factors that might influence the decision, including the deceased's intentions, the financial position of the estate, and the needs of the parties involved.
The court, after examining the evidence and submissions, concluded that the deceased had made adequate provision for the plaintiff under the will. The court found that the deceased had acted reasonably and fairly, taking into account the various factors involved. The court also considered the financial position of the estate, the deceased's intentions, and the needs of the other parties involved in the dispute. Ultimately, the court determined that the plaintiff had not demonstrated that the provision made in the deceased's will was inadequate, and thus declined to make an order in the plaintiff's favour.
The final orders of the court were that the application for a family provision order was dismissed, and the plaintiff was to pay the defendants' costs of the application. The court found that the deceased had made adequate provision for the plaintiff, and there was no need for further intervention. The decision highlights the importance of careful consideration of the statutory criteria and the deceased's intentions when making a family provision order under the Succession Act 2006.