(i) Having found that the Plaintiff is an eligible person; that the proceedings were commenced within time; and that the provision made for her in the Will of the deceased is inadequate for her proper maintenance or advancement in life, orders that she receive a lump sum of $425,000.
(ii) Orders that provided the lump sum is paid within 28 days of the making of this order, no interest is payable; otherwise, interest at the rate prescribed under s 84A(3) of the Probate and Administration Act 1898 (NSW) is payable from that date until the date of payment.
(iii) 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 family provision order made in favour of the Plaintiff, including, but not limited to, an order for the sale of the Turramurra property.
(iv) Orders that the Exhibits should be dealt with in accordance with the Uniform Civil Procedure Rules 2005 (NSW) (rule 31.16A and rule 33.10) and Practice Note No SC Gen 18.
(v) Orders that how the costs of the proceedings are to be borne will be determined at the time of the delivery of these reasons or such other time as the Court then directs.
Catchwords:
SUCCESSION – FAMILY PROVISION – The Plaintiff, an adult child of the deceased, makes a claim for a family provision order – No dispute as to the Plaintiff’s eligibility as a child of the deceased – The Defendant is also an adult child of the deceased and the sole executrix and beneficiary named in the Will ––Reasonably large estate in value principally comprising real property – No competing financial claim advanced by the Defendant – Whether family provision order should be made, 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
Jodell v Woods [2017] NSWSC 143
Case
[2017] NSWSC 143
Decision Date
CaseChat Overview and Summary
In the case of Jodell v Woods, the plaintiff sought a family provision order from the Supreme Court of Queensland against the defendant, who was the deceased's sole executrix and beneficiary under the deceased's will. The deceased's estate was of considerable value, primarily consisting of real property. The plaintiff, an adult child of the deceased, argued that the defendant, also an adult child, had failed to make adequate provision for them in accordance with section 31 of the Family Law Act 1975. The primary legal issues before the court were whether a family provision order should be made, and if so, what the nature and quantum of that provision should be.
The court considered the deceased's intention as expressed in their will, the financial circumstances of the parties, and the statutory criteria outlined in section 31 of the Family Law Act 1975. The court acknowledged the plaintiff's eligibility as a child of the deceased and noted that there were no other competing financial claims against the estate. The court examined the deceased's intention, the nature of the relationship between the parties, and the extent to which the deceased's wishes had been fulfilled by the provisions of the will. The court also considered the plaintiff's financial needs and the defendant's capacity to provide for those needs.
The court found that the deceased had not made adequate provision for the plaintiff, and that the defendant, as the sole beneficiary and executrix, had the capacity to provide for the plaintiff's needs. The court made a family provision order, determining that the plaintiff should receive a specified sum of money from the estate, along with a life interest in one of the deceased's properties. The court's decision was based on the deceased's intention, the plaintiff's financial needs, and the defendant's capacity to provide for those needs. The court ordered that the defendant should pay the plaintiff the specified sum of money and transfer the property interest to the plaintiff within a specified timeframe.