(1) Orders, pursuant to s 59 of the Succession Act 2006 (NSW) that in lieu of the provision made for her in Clause 3(b) of the Will dated 27 May 2018 of Patricia Gumulak, the Plaintiff receive, by way of provision, a lump sum of $95,000.
(2) Orders that no interest is to be paid on the lump sum if it is paid by 1 September 2020; and if not so paid, interest is to be paid on any unpaid part thereof, calculated at the rate prescribed by s 84A(3) of the Probate and Administration Act 1898 (NSW), from 2 September 2020 until the date of payment in full.
(3) Orders that the burden of the provision made for the Plaintiff be borne equally by John Leslie Gumulak (the Defendant) and Anne Maree Butler, the residuary beneficiaries named in Clause 3(c) of the deceased’s Will.
(4) Orders that the Plaintiff receive a specified gross sum instead of assessed costs, agreed at $66,800, for her costs of the proceedings, to be paid out of the estate of the deceased.
(5) Orders that the Defendant’s costs, calculated on the indemnity basis, of the proceedings, be paid, or retained, as the case may be, out of the estate of the deceased.
(6) Orders that the hearing date listed on 9 July 2020 be vacated.
(7) Orders that the Exhibits be returned.
Catchwords:
SUCCESSION – Family provision – Claim by adult child for provision from the deceased’s estate under Succession Act 2006 (NSW), Ch 3 – The Defendant is also an adult child of the deceased – Close relationship between Defendant and deceased – Plaintiff estranged from deceased for a few years before deceased’s death – Relevance of Plaintiff’s diagnosis of PTSD and Borderline Personality Disorder on her conduct – Deceased left a Will providing a pecuniary legacy of $10,000 to the Plaintiff – No dispute about nature and value of the estate – Estate of modest value – No competing financial claim by either of the residuary beneficiaries – Whether there was, and if so, the relevance of, an estrangement of the Plaintiff and the deceased – 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
Keaton v Gumulak [2020] NSWSC 943
Case
[2020] NSWSC 943
Decision Date
CaseChat Overview and Summary
In the matter of Keaton v Gumulak, the dispute arose under the Succession Act 2006 (NSW) concerning a claim by an adult child for provision from the deceased's estate. The plaintiff, Keaton, sought additional provision from the estate of her deceased father, Gumulak, alleging that the provision made in the deceased's Will was inadequate. The deceased had left a pecuniary legacy of $10,000 to the plaintiff in his Will, but Keaton argued that this did not constitute adequate provision given the modest value of the estate and the absence of any competing financial claims from other residuary beneficiaries. The defendant, also an adult child of the deceased, contested the claim, arguing that the provision made was sufficient and that any estrangement between Keaton and the deceased was relevant in assessing the claim.
The primary legal issues the court had to decide were whether there was an estrangement between the plaintiff and the deceased that could be considered in the context of the family provision claim, and whether adequate and proper provision was made in the Will for the plaintiff. The court needed to consider the impact of the plaintiff's estrangement from the deceased and her diagnosis of PTSD and Borderline Personality Disorder on her conduct and the deceased's decision-making. The court also needed to determine whether the pecuniary legacy of $10,000 was adequate, given the overall value of the estate.
The court found that there was indeed an estrangement between the plaintiff and the deceased, which was relevant in assessing the deceased's intentions and the provision made in the Will. The court acknowledged the plaintiff's diagnosis of PTSD and Borderline Personality Disorder, which had influenced her conduct and relationship with the deceased. However, the court determined that the estrangement and the plaintiff's diagnosis did not negate the deceased's right to distribute his estate as he saw fit. The court found that the pecuniary legacy of $10,000 was adequate and proper provision for the plaintiff, considering the overall value of the estate and the absence of any competing financial claims. The court dismissed the plaintiff's claim for additional provision.
The court's final order was that the plaintiff's claim for additional provision from the deceased's estate was dismissed, and the pecuniary legacy of $10,000 left to the plaintiff in the Will was upheld as adequate and proper provision.