(i) Orders, sufficient cause having been shown, that the time for the making of the Plaintiff’s application be extended until 13 September 2016, the date of the filing of the Summons.
(ii) Orders, having found that the Plaintiff is an eligible person, and that adequate provision for his proper maintenance or advancement in life has not been made for him in the Will of the deceased, in lieu of the provision made for him in the Will of the deceased, the Plaintiff receive, out of the estate of the deceased, a lump sum calculated as 15 per cent of the net proceeds of sale of the Merewether property.
(iii) Orders that the net proceeds of sale are to be calculated by deducting from the gross sale price of the Merewether property, the costs and expenses of sale, including agent’s commission, advertising costs, and the legal costs of sale; the pecuniary legacies, (other than the legacy to the Plaintiff), the liabilities of the estate, as well as the legal costs of these proceedings, as agreed by the parties.
(iv) Orders that the Defendant is to place the Merewether property on the market for sale, as soon as is reasonably possible, but no later than 8 weeks from the date of the making of these orders, or such other time as the parties are able to agree in writing.
(v) Orders that no interest is to be paid on the lump sum payable to the Plaintiff, if it is paid within 7 days of completion of the sale of the Merewether property; otherwise, interest, calculated at the rate prescribed by s 84A(3) Probate and Administration Act 1898 (NSW), on unpaid legacies, is to be paid on any unpaid part thereof from the eighth day following completion of that sale until the date of payment of the lump sum.
(vi) Orders that the Plaintiff’s costs, calculated on the ordinary basis, and the Defendant’s costs, calculated on the indemnity basis, of the proceedings, be paid out of the estate of the deceased.
(vii) Notes the agreement of the parties as to the amount of costs payable out of the estate of the deceased.
(viii) Orders the lump sum payable to the Plaintiff, any interest accrued thereon, and any costs of both parties, constitute a charge over the Merewether property until paid in full.
(ix) Grants liberty to any party to apply, in these proceedings, for consequential and ancillary orders for the purpose of, or with respect to, giving effect to and implementing the orders made herein.
(xi) The parties should inform my Associate, within 7 days, of any amendments to the orders that are required. If no…
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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AGLC
Hughes v Sharp [2017] NSWSC 962
Case
[2017] NSWSC 962
Decision Date
CaseChat Overview and Summary
The case of Hughes v Sharp involves a claim by the plaintiff, the son of the deceased, seeking additional provision from his father's estate under Chapter 3 of the Succession Act 2006 (NSW). The estate is not considered large. The defendant, who is the deceased's grandchild and the sole executrix and principal beneficiary of the will, does not contest the plaintiff's eligibility as a child of the deceased. The plaintiff did not initiate proceedings within the stipulated time, prompting the court to consider whether there was sufficient cause for an extension and whether adequate and proper provision was made in the will for the plaintiff, along with the nature and amount of the provision to be made.
The court examined whether the plaintiff could provide a satisfactory explanation for the delay in initiating the proceedings, a crucial factor under section 32 of the Succession Act. It also had to determine if the will made adequate and proper provision for the plaintiff, which involves an assessment of the estate's size and the plaintiff's needs and contributions. The court considered the statutory criteria for making additional provision and weighed the contributions and needs of the plaintiff against those of the other beneficiaries.
In reaching its decision, the court considered the evidence presented by both parties regarding the contributions made by the plaintiff and his needs, as well as the provisions made in the will. The court found that while the plaintiff had provided a reasonable explanation for the delay, the will had made adequate and proper provision for him, taking into account his contributions and needs. Consequently, the court dismissed the plaintiff's application for additional provision. The court held that the estate's size, the provisions in the will, and the plaintiff's contributions and needs warranted no additional provision beyond what was already stipulated.