Orders that any argument as to costs of the proceeding and how those costs are to be borne, be listed on a date to be arranged when these reasons are published.
Catchwords:
SUCCESSION - FAMILY PROVISION - The Plaintiff, the adopted son of the deceased, applies for a family provision order under Chapter 3 of the Succession Act 2006 - The Defendants are executors appointed under the Will to whom Probate granted - Provision for the Plaintiff made in the Will – Estate not small - Only one competing financial claimant although three beneficiaries, other than Plaintiff, named in the Will – Conduct of the Plaintiff towards the deceased for some years prior to death involving physical and verbal assaults and breaches of AVOs obtained by the deceased against him - Whether adequate and proper provision not made in Will of the deceased for the Plaintiff and, if so, the nature and quantum 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
Hinderry v Hinderry [2016] NSWSC 780
Case
[2016] NSWSC 780
Decision Date
CaseChat Overview and Summary
The case of Hinderry v Hinderry involved the Plaintiff, an adopted son of the deceased, who sought a family provision order under Chapter 3 of the Succession Act 2006. The Defendants, executors appointed under the Will, had been granted Probate. The Will contained a provision for the Plaintiff, although the estate was not categorised as small. Besides the Plaintiff, there were three other beneficiaries named in the Will, with only one of these being a competing financial claimant. The Plaintiff's conduct towards the deceased in the years leading up to his death was marked by physical and verbal assaults, as well as breaches of Apprehended Violence Orders (AVOs) obtained by the deceased against him. The court was tasked with determining whether the Will had made adequate and proper provision for the Plaintiff, and if so, what the nature and quantum of any provision should be.
The legal issues before the court centred on the interpretation and application of the family provision provisions within the Succession Act 2006. Key considerations included the nature and extent of the Plaintiff's contributions to the deceased's estate, the fairness of the provisions made in the Will, and the relevance of the Plaintiff's conduct towards the deceased. The court had to weigh these factors against the express wishes of the deceased as set out in the Will, and decide whether the Will reflected a fair and reasonable outcome for the Plaintiff given the totality of circumstances.
In reaching its decision, the court examined the statutory criteria outlined in the Succession Act 2006, particularly s 46(2) and (3). The court found that the Plaintiff's conduct towards the deceased was a significant factor in assessing the fairness of the provisions made in the Will. Despite the Plaintiff's status as an adopted son, the court held that the Will adequately provided for him, taking into account his conduct and the provisions made to other beneficiaries. Consequently, the Plaintiff's application for a family provision order was dismissed. The court concluded that the Will reflected the reasonable financial needs of the Plaintiff, considering both his contributions and his actions towards the deceased. The court did not deem it necessary to alter the provisions of the Will.