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Grover v NSW Trustee and Guardian

Grover v NSW Trustee and Guardian

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Case Copied 4 August 2015 74 min read

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Supreme Court

New South Wales

Medium Neutral Citation: Grover v NSW Trustee & Guardian [2015] NSWSC 1048
Hearing dates: 20 and 21 July 2015
Decision date: 04 August 2015
Jurisdiction: Equity Division
Before: Hallen J
Decision:
The orders of the court are that:
(i)    Sufficient cause having been shown, the time for the making of the Plaintiff’s application be extended to 15 July 2013, the date of the filing of the Summons.
(ii)   Having found that the Plaintiff is an eligible person; that there are factors which warrant the making of his application; and that the provision made for him in the Will of the deceased is inadequate for his proper maintenance or advancement in life, he is to receive a lump sum of $225,000 out of the estate of the deceased.
(iii)   The burden of the provision made for the Plaintiff, should be borne out of the share of the residuary estate of the deceased passing to Donna Marea Costigan; and to the extent that it is insufficient, by the balance of the residuary estate.
(iv) No interest is to be paid on the lump sum payable to the Plaintiff, if that lump sum is paid within 14 days of the making of these orders; otherwise, interest calculated at the rate prescribed by s 84A(3) Probate and Administration Act 1898 (NSW), on unpaid legacies, is to be paid from that date until the date of payment.
(v)   Unless an application to vary this costs order is made within 7 days of the date of handing down these reasons for judgment, the costs of the Plaintiff, calculated on the ordinary basis; the costs of Donna Marea Costigan, for the period that she was a party between 21 February 2014 and 5 December 2014, calculated on the ordinary basis; and the costs of the Defendant, calculated on the indemnity basis, shall be paid out of the residuary estate of the deceased.
(vi) Orders that the Exhibits should be dealt with in accordance with the Uniform Civil Procedure Rules 2005 (NSW).

Catchwords: SUCCESSION – FAMILY PROVISION – The Plaintiff, a grandchild of the deceased applies for a family provision order under Part 3.2 of the Succession Act 2006 (NSW) – The Defendant, the executor of the Will of the deceased, to whom Probate was granted – Extension of time for making Plaintiff’s application required – Dispute that Plaintiff is an eligible person – Dependency in issue – Whether 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 – Nature and quantum of provision to be made for the Plaintiff – How burden of the provision is to be borne
Legislation Cited: Civil Liability Act 2002 (NSW)
Family Provision Act 1982 (NSW)
Life Insurance Act 1995 (Cth)
Probate and Administration Act 1898 (NSW)
Succession Act 2006 (NSW)
Succession Amendment (Family Provision) Act 2008 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Aafjes v Kearney [1976]…

Grounds of appeal

[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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Details

Case: [2015] NSWSC 1048
Decision Date: 04 August 2015

CaseChat Overview and Summary

The plaintiff, a grandchild of the deceased, applied to the court for a family provision order under Part 3.2 of the Succession Act 2006 (NSW). The defendant was the executor of the deceased's will, to whom probate had been granted. The plaintiff sought an extension of time for making the application and argued that they were an eligible person under the Act, claiming dependency on the deceased. The court needed to decide whether there were factors warranting the making of the application and if adequate and proper provision had not been made for the plaintiff in the deceased's will. The nature and quantum of the provision to be made for the plaintiff and how the burden of the provision was to be borne were also central to the dispute.

The court examined the legal issues, considering whether the plaintiff was an eligible person and if they had been adequately provided for under the will. The court looked at the nature of the dependency and the circumstances of the deceased at the time of making the will. It assessed whether there were any factors, such as hardship or unfair discrimination, that warranted the making of the application. The court also considered the balance of the estate and the burden of any provision on the executor and other beneficiaries. The court balanced the plaintiff's claim against the deceased's intentions as expressed in the will.

The court found that the plaintiff was an eligible person under the Act and that the deceased had not made adequate and proper provision for them. The court considered the dependency of the plaintiff on the deceased and the factors that warranted the making of the application. The court concluded that the deceased had not taken into account the plaintiff's needs and circumstances when making the will. The court ordered that the defendant, as executor of the deceased's estate, make a provision for the plaintiff from the estate. The court determined the nature and quantum of the provision, taking into account the plaintiff's dependency and the deceased's ability to provide for the plaintiff. The court also considered how the burden of the provision would be borne by the estate.

Orders