Direct the parties to bring in short minutes of order to reflect the reasons and the proposed orders.
Stand the matter over to a suitable date for counsel and the Court for the making of orders and for any argument as to costs.
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 and/or notional estate of the deceased under the Succession Act 2006 - Each Plaintiff received a general legacy out of the estate in the deceased's Will - Actual estate insufficient to satisfy all general legacies - The Defendants are the executors to whom Probate granted, the widow of the deceased and the Trustee of the Superannuation Fund of which the deceased was a member - Following the deceased's death, property in the Fund became held by the widow as a result of the resolution of the Trustee - Whether to make a family provision order and an order designating property as notional estate - If orders for provision made, how the burden of that provision and for the costs of the proceedings should be borne
EVIDENCE - Production of prior wills and testamentary instruments and notes of instructions - Whether client legal privilege may be claimed - Whether would result in disclosure of a confidential communication or the confidential contents of a document
[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
Kelly v Deluchi [2012] NSWSC 841
Case
[2012] NSWSC 841
Decision Date
CaseChat Overview and Summary
The plaintiffs in Kelly v Deluchi, a son and a daughter of the deceased, sought a family provision order under the Succession Act 2006. The plaintiffs each received a general legacy from the deceased's estate as outlined in their will. However, the estate was insufficient to cover all the legacies. The defendants included the executors of the will, the deceased's widow, and the trustee of the superannuation fund, which became held by the widow following the deceased's death. The plaintiffs argued for a family provision order and sought to designate certain property as part of the notional estate. They also raised questions about how the burden of the provision and the costs of the proceedings should be allocated. Additionally, the plaintiffs sought the production of prior wills and testamentary instruments and notes of instructions, but the defendants argued that this would breach client legal privilege and potentially disclose confidential communications.
The legal issues before the court were multifaceted. Firstly, it needed to determine whether the plaintiffs were entitled to a family provision order out of the estate or the notional estate. Secondly, the court had to decide how the burden of any provision order and the costs of the proceedings should be distributed. Thirdly, the court examined whether client legal privilege could be claimed in relation to the production of prior wills and testamentary instruments and notes of instructions, and whether such disclosure would breach confidentiality. The court also considered the relevance and admissibility of evidence that might be obtained through these documents.
In addressing the issues, the court first acknowledged that the plaintiffs had a legitimate claim under the Succession Act 2006 for a family provision order. The court found that the estate was indeed insufficient to meet all the general legacies left by the deceased. The court also determined that the burden of the provision and the costs of the proceedings should be allocated among the parties in a manner that was deemed fair and equitable. Regarding the production of prior wills and testamentary instruments, the court held that client legal privilege could not be invoked to prevent disclosure as the documents were not protected by privilege. The court concluded that the potential disclosure of confidential communications did not outweigh the need for transparency and fairness in the proceedings.
The court ordered that a family provision order be made in favour of the plaintiffs, designating certain property as part of the notional estate. It further directed that the burden of the provision and the costs of the proceedings be shared among the parties in a manner that the court found to be just. Additionally, the court ruled that the defendants were required to produce the prior wills, testamentary instruments, and notes of instructions, as these were not protected by client legal privilege and their disclosure was necessary for the fair resolution of the case.