Kelly v Deluchi

Case [2012] NSWSC 841


Supreme Court


New South Wales

Medium Neutral Citation: Kelly v Deluchi [2012] NSWSC 841
Hearing dates:23 & 24 July 2012
Decision date: 26 July 2012
Jurisdiction:Equity Division
Before: Hallen AsJ
Decision:

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
Legislation Cited: Family Provision Act 1982
Probate and Administration Act 1898
Property (Relationships) Act 1984
Succession Act 2006
Succession Amendment (Family Provision) Act 2008
The Revised Professional Conduct and Practice Rules 1995
Cases Cited: Alexander v Jansson [2010] NSWCA 176
Allardice v Allardice, In re Allardice, (1909) 29 NZLR 959
Barns v Barns [2003] HCA 9 [2005] SydLawRw 12; (2005) 27(2) Sydney Law Review 263
Bartlett v Coomber [2008] NSWCA 100
Blore v Lang (1960) 104 CLR 124
Bondelmonte v Blanckensee [1989] WAR 305
Bosch v Perpetual Trustee Co Ltd [1938] AC 463
Buckland Deceased, Re [1966] VR 404
Butcher v Craig [2009] WASC 164
Christie v Manera [2006] WASC 287
Collins v McGain [2003] NSWCA 190
Cooper v Dungan (1976) 50 ALJR 539
Cropley v Cropley [2002] NSWSC 349
Crossman v Riedel [2004] ACTSC 127
Devereaux-Warnes v Hall [No 3] [2007] WASCA 235; (2007) 35 WAR 127
Diver v Neal [2009] NSWCA 54
Edgar v Public Trustee for the Northern Territory [2011] NTSC 5
Foley v Ellis [2008] NSWCA 288
Galt v Compagnon (NSWSC, 24 February, 1998, unreported)
Gardiner v Gardiner (NSWSC, 28 May 1998, unreported)
Goodman v Windeyer (1980) 144 CLR 490
Gorton v Parks (1989) 17 NSWLR 1
Grant v Downs [1976] HCA 63; (1976) 135 CLR 674
Harris, Re (1936) 5 SASR 497
Hawkins v Prestage (1989) 1 WAR 37
Hawksford v Hawksford [2005] NSWSC 796
Hughes…

Continue reading Kelly v Deluchi

Sign in free to access the full text

Details
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.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.