Stands the proceedings over for any argument as to costs and for the making of orders in favour of the Plaintiff, which reflect the reasons for judgment and to enable the Defendant to precisely identify the bank account holding the amount sufficient to satisfy the order for provision to be made in favour of the Plaintiff, any interest thereon, and any costs ordered to be paid out of the notional estate
Catchwords:
SUCCESSION – FAMILY PROVISION – Claim for family provision order under Part 3.2 of the Succession Act 2006 (NSW) – The Defendant, the executor of the Will of the deceased and the person with whom the deceased person was living in a de facto relationship at the time of his death – Probate granted – Defendant the sole beneficiary named in Will – Actual estate consisting of small amount of cash – Notional estate said to be deceased’s interest as joint tenant in real estate and in joint bank accounts held with Defendant – Jointly held property transmitted to the Defendant – Order sought designating deceased’s interest in jointly held property as notional estate – Whether adequate and proper provision not made in Will of the deceased for the Plaintiff – Whether order designating property as notional estate should be made – Nature and quantum of provision, if any, that ought to be made for the Plaintiff.
[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
Gray v Mather [2016] NSWSC 699
Case
[2016] NSWSC 699
Decision Date
CaseChat Overview and Summary
In the case of Gray v Mather, the Plaintiff, Gray, sought a family provision order under Part 3.2 of the Succession Act 2006 (NSW) against the Defendant, Mather, who was the executor of the will of the deceased and the person with whom the deceased person was living in a de facto relationship at the time of his death. The dispute centred on whether adequate and proper provision had been made for the Plaintiff in the Will of the deceased, and if so, whether an order should be made designating the deceased's interest in jointly held property as part of the notional estate. The matter was heard in the Supreme Court of New South Wales.
The court was required to determine whether the deceased had made adequate and proper provision for the Plaintiff in the will, and if not, what provision, if any, should be made. The court had to consider the nature and quantum of provision that ought to be made for the Plaintiff, particularly in light of the deceased's interest in jointly held property. The court also had to assess the notional estate, which included the deceased's interest as joint tenant in real estate and in joint bank accounts held with the Defendant.
The court found that the deceased had not made adequate and proper provision for the Plaintiff in the will. The actual estate was a small amount of cash, but the notional estate included the deceased's interest as joint tenant in real estate and in joint bank accounts held with the Defendant. The jointly held property transmitted to the Defendant, and the court considered whether an order designating the deceased's interest in the jointly held property as part of the notional estate should be made. The court concluded that an order should be made, and that the Plaintiff was entitled to a provision from the deceased's estate. The court ordered that the Defendant pay the Plaintiff a lump sum of $150,000 within 28 days of the judgment.