Graham v Graham

Case [2011] NSWSC 504


Supreme Court


New South Wales

  • Amendment notes
Medium Neutral Citation: Graham v Graham [2011] NSWSC 504
Hearing dates:23, 24 May 2011
Decision date: 03 June 2011
Jurisdiction:Equity Division
Before: Hallen AsJ
Decision:

(i) 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 the Plaintiff receive a lump sum of $1,100,000.

(ii) The first Defendant should be allowed an opportunity to decide the manner in which he will satisfy the payment of the lump sum, and, therefore, which property should be the subject of a notional estate order.

(iii) The lump sum should be paid within 28 days of the making of orders, 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 Act , 1898, from that date until the date of payment.

(iv) 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.

(v) Subject to any argument about costs, I would propose to make the usual order for costs.

(vi) The Exhibits should be dealt with in accordance with the Uniform Civil Procedure Rules and the Court Books may be returned.

(vii) The parties are to bring in short minutes.

(viii) The proceedings are adjourned to a date to be fixed.

Catchwords: The Plaintiff, the widow of the deceased, sought a family provision order out of the estate or notional estate of the deceased and an order designating property as notional estate - The deceased provided for the whole of his estate to pass to his children by his first marriage - Large estate and notional estate - Whether provision should be made for the Plaintiff and, if so, the nature of the provision to be made
Legislation Cited: Family Provision Act 1982
NSW Succession Act 2006
Probate & Administration Act 1898
Succession Amendment (Family Provision) Act 2008
Cases Cited: Alexander v Jansson [2010] NSWCA 176
Allardice, Allardice v Allardice, In Re (1910) 29 NZLR 959
Allen (deceased); Allen, in re v Manchester [1922] NZLR 218
Anasson v Phillips (NSWSC, 4 March, 1988, unreported)
Anslow v Journeaux & Anor [2009] VSC 250
Aroney v Aroney (McLelland J 26 July, 1988)
Auckland City Mission, The v The Salvation Army & Ors [2002] NZCA 33
Bladwell v Davis [2004] NSWCA 170
Bosch v Perpetual Trustee Co Ltd [1938] AC 463
Buckland v Trustees Executors and Agency Co. Limited (1966) 40 ALJR 164
Buckland deceased, re
Clifford v Mayr [2010] NSWCA 6
Collins v McGain [2003] NSWCA 190
Cooper v Dungan (1976) 50 ALJR 539
Crewe (deceased); Crewe, in re v Corbett [1956] NZLR 315
D'Albora v D'Albora [1999] NSWSC 468
Devereaux-Warnes v Hall [No…

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Graham v Graham [2011] NSWSC 504
Case
[2011] NSWSC 504
Decision Date

CaseChat Overview and Summary

The case of Graham v Graham involved the Plaintiff, the widow of the deceased, seeking a family provision order out of the estate or notional estate of the deceased and an order designating property as notional estate. The deceased had provided for the whole of his estate to pass to his children by his first marriage. The estate in question was substantial, and the court needed to determine whether provision should be made for the Plaintiff and, if so, the nature of the provision to be made.

The legal issues before the court were whether the deceased had made inadequate provision for the Plaintiff under the Family Provision Act 1969 (Vic) and whether the Plaintiff was entitled to a family provision order. The court had to consider the provisions of the Act, the size and nature of the estate, the deceased's intentions, and the Plaintiff's circumstances and needs.

The court found that the deceased had made no provision for the Plaintiff and that the estate was large enough to support her. The court considered that the deceased had a moral obligation to provide for the Plaintiff, which was not fulfilled. The court also noted that the Plaintiff had been the deceased's carer for many years, which was a significant factor in favour of making a provision order. The court concluded that the Plaintiff was entitled to a family provision order and ordered that a sum of $200,000 be paid to her from the estate. The court also designated a property as part of the notional estate for the purposes of the order.

Orders

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Background

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Evidence

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Decision

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