Direct the parties to bring in Short Minutes of Order reflecting the reasons for judgment within 14 days. Stand over the proceedings to deal with any outstanding argument on the form of the Short Minutes of Order
Catchwords:
SUCCESSION - FAMILY PROVISION - The Plaintiff, a minor grandchild of the deceased, applies by tutor for a family provision order under Chapter 3 of the Succession Act 2006 (NSW) - The Defendant, a daughter of the deceased, to whom Probate of the deceased's Will was granted - No dispute that Plaintiff is an eligible person or that there are factors which warrant the making of his application - Whether adequate and proper provision not made in Will of the deceased for the Plaintiff - Other claims by another daughter and another grandchild made for family provision orders and resolved - Estate distributed to Defendant as trustee of a testamentary trust - No question that Defendant will satisfy order for provision made in favour of the Plaintiff - Nature and quantum of provision 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
Griffiths v Craigie [2014] NSWSC 1339
Case
[2014] NSWSC 1339
Decision Date
CaseChat Overview and Summary
The matter before the court involved a dispute over the distribution of the estate of a deceased person. The Plaintiff, a minor grandchild of the deceased, applied for a family provision order under Chapter 3 of the Succession Act 2006 (NSW). The Defendant, a daughter of the deceased, had been granted Probate of the deceased's Will. The Plaintiff argued that the Will did not make adequate and proper provision for him. Other claims by another daughter and another grandchild for family provision orders were also made and resolved. The court was tasked with determining whether the Will had made adequate and proper provision for the Plaintiff.
The court had to decide whether the Will of the deceased made adequate and proper provision for the Plaintiff. The Plaintiff's eligibility and the existence of factors warranting his application were not disputed. The court examined the nature and quantum of the provision that should be made for the Plaintiff, considering the distribution of the estate to the Defendant as trustee of a testamentary trust. The court noted that the Defendant would be able to satisfy any order made in favour of the Plaintiff.
The court concluded that the Will did not make adequate and proper provision for the Plaintiff. It ordered that the Defendant, as trustee of the testamentary trust, should make provision for the Plaintiff. The exact nature and quantum of the provision were to be determined at a later date. This decision provided clarity for the distribution of the estate and addressed the Plaintiff's claim for family provision.