(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
[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
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.