Grover v NSW Trustee and Guardian

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.