John v John; John v John [2010] NSWSC 937 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):
26 July 2010
JUDGMENT DATE :
24 August 2010
JURISDICTION:
Equity
JUDGMENT OF:
Ward J
DECISION:
2008/281624 Application dismissed. Order costs in favour of plaintiff on party/party basis out of proceeds of sale of Woodberry property. 2008/282303 Grant leave for extension of time to bring Family Provision Act claim. Find that there has been inadequate provision. Order to be made for designation of Woodberry property as notional estate and for provision in favour of plaintiff out of proceeds of sale of Woodberry property in lieu of residuary bequest in his favour. Crisp order to be made in favour of remaining beneficiaries. Costs order to be made in favour of executor's costs on indemnity basis out of proceeds of sale of Woodberry property. Final orders to be entered after any further submissions
CATCHWORDS:
SUCCESSION - family provision and maintenance - application made by one of three children for provision from mother’s estate - small estate left to three children in equal shares - whether inadequate provision made for plaintiff - if so, what provision ought to be made - HELD - extension of time granted under s 16(3) of Family Provision Act 1982 for bringing action - provision inadequate - designation of property as notional estate - provision ordered for plaintiff - plaintiff should receive a legacy equal in amount to five-sixths of the net proceeds of sale of the property after there has been deducted from the sale proceeds the vendor’s costs and the amount of the costs of the Family Provision Act proceedings incurred by first defendant as executor on an indemnity basis - remaining one-sixth of the proceeds should be distributed to first defendant - any property acquired with notional estate should be charged with legacies for remaining beneficiaries - PRACTICE AND PROCEDURE - whether necessary for all executors to be party to proceedings - HELD - not necessary for all executors to be joined
[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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John v John [2010] NSWSC 937
Case
[2010] NSWSC 937
Decision Date
CaseChat Overview and Summary
In John v John, the plaintiff, one of three children, sought an order for provision from his mother’s estate. The estate, of modest value, was left to the three children in equal shares. The plaintiff contended that the provision made was inadequate and sought an increase in his share. The court was required to determine whether the provision was indeed inadequate and, if so, what provision ought to be made. Additionally, the court needed to address whether all executors had to be joined in the proceedings and whether the application could be made out of time.
The court found that the provision made to the plaintiff was inadequate and granted an extension of time under section 16(3) of the Family Provision Act 1982 for the plaintiff's application. The court designated the property as the notional estate and ordered that the plaintiff should receive a legacy equal to five-sixths of the net proceeds of the sale of the property, after deducting the vendor’s costs and the costs of the proceedings incurred by the first defendant as executor on an indemnity basis. The remaining one-sixth of the proceeds was to be distributed to the first defendant. Any property acquired with the notional estate was to be charged with legacies for the remaining beneficiaries. The court concluded that it was not necessary for all executors to be joined in the proceedings, allowing the plaintiff's application to proceed despite this.