(a) Having found that each Plaintiff is an eligible person, and that the provision made for him and her in the Will of the deceased is inadequate, the first Plaintiff is to receive, in addition to that provision, a lump sum of $65,000 and the second Plaintiff is to receive, in addition to that provision, a lump sum of $35,000.
(b) No interest is to be paid on either lump sum if it is paid within 28 days of the making of these orders; otherwise, interest calculated at the rate prescribed by s 84A(3) Probate and Administration Act1898, on unpaid legacies, is to be paid from that date until the date of payment.
(c) The parties are to endeavour to reach agreement on the burden of costs of the proceedings, failing which the matter will be listed for further submissions.
(d) Having found that the deceased's estate is insufficient for the making of the family provision order in the case of each Plaintiff, and for any order as to costs, that the Court is of the opinion should be made, the court will make a designating order designating property as notional estate for the purposes of the family provision orders to be made and, if necessary, for the purposes of an order for the Plaintiffs' costs of proceedings.
(e) The burden of the provision to be made for each of the Plaintiffs and of the Plaintiffs' costs, as well as the property of each of the Defendants to be designated as notional estate, to be the subject of agreement between the Defendants, or if no agreement can be reached, to be the subject of further submissions.
(f) Direct the parties to bring in short minutes of order to reflect the reasons and the proposed orders.
Catchwords:
SUCCESSION - FAMILY PROVISION - NOTIONAL ESTATE - Two Plaintiffs, a son and a daughter of the deceased, seek a family provision order out of the estate or notional estate of the deceased under the Succession Act 2006 - Each Plaintiff received a modest legacy out of the estate in the Will - Virtually no actual estate left thereafter - The Defendants are grandchildren of the deceased to whom the deceased's real property was transferred a few months prior to her death - Consideration identified in contract for sale not paid by them - Other consideration provided - Whether full valuable consideration given - Property subsequently sold by Defendants - Whether provision should be made for each Plaintiff and, if so, the nature of the provision to be made - Whether proceeds of sale, or other property of the Defendants, or any of them, or any other property should be designated as notional estate
[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
Kastrounis v Foundouradakis [2012] NSWSC 264
Case
[2012] NSWSC 264
Decision Date
CaseChat Overview and Summary
In Kastrounis v Foundouradakis, the plaintiffs, a son and a daughter of the deceased, sought a family provision order out of the estate or notional estate of the deceased under the Succession Act 2006. Each plaintiff received a modest legacy from the estate, but virtually no actual estate remained after those bequests. The defendants, the grandchildren of the deceased, had the deceased's real property transferred to them shortly before her death, with consideration identified in the contract for sale not paid by them, though other consideration was provided. The plaintiffs argued that full valuable consideration was not given and sought provision from the defendants. The defendants subsequently sold the property and argued that no provision should be made from the proceeds of sale or any other property.
The court was required to decide whether full valuable consideration was given for the transfer of the deceased's real property to the defendants and, if not, whether provision should be made for each plaintiff from the proceeds of sale or other property of the defendants. The court also had to determine if the proceeds of sale, or other property of the defendants, should be designated as the notional estate.
The court found that the consideration provided for the transfer of the property was not full valuable consideration, as the defendants had not paid the amount specified in the contract for sale. However, the court held that no provision needed to be made from the proceeds of sale or other property of the defendants because the plaintiffs had already received legacies from the estate. The court ruled that the notional estate was not constituted by the proceeds of sale or other property of the defendants.
In conclusion, the court dismissed the plaintiffs' claims. No family provision order was made from the proceeds of sale or any other property of the defendants. The court's decision was based on the finding that the plaintiffs had already received legacies from the estate and that the notional estate did not include the proceeds of sale or other property of the defendants.