Kemlo v Kemlo - [2010] NSWSC 1331

CITATION: Kemlo v Kemlo [2010] NSWSC 1331

HEARING DATE(S): 27/10/2010 and 28/10/2010

JUDGMENT DATE :
22 November 2010

JURISDICTION: Equity Division

JUDGMENT OF: Macready AsJ at 1

DECISION: 1. In addition to the provision for the plaintiff provided in the will of the deceased the plaintiff is to receive an additional legacy of $275,000.
2.To the extent necessary to meet the provision of these orders I declare the assets of the Kemlo superannuation fund as notional estate.
3. The plaintiff’s costs on an ordinary basis and the defendant’s costs on an indemnity basis are to be paid or retained out of the estate of the deceased.
4. Interest is to run at the rate provided for under the Probate and Administration Act 1898 if the legacy is not paid within 3 months from today’s date to commence from the expiration of the period of 3 months.

CATCHWORDS: Family provision. Application by son who was left inadequate legacy. Consideration of specail circumstances under s 28 (1) (b) to designate notional estate. Increased legacy ordered and orders for designation of notional estate.

PARTIES: Tod Warren Kemlo v Bunsom Kemlo (Estate of the Warren Frank Kemlo)

FILE NUMBER(S): SC 2008/281681

COUNSEL: Mr A Lakeman for plaintiff
Mr C Carter for defendant

SOLICITORS: Priest McCarron Lawyers for plaintiff
McKenzie & Company Lawyers for defendant

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IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

Associate Justice Macready

Monday 22 November 2010

2008/281681 TOD WARREN KEMLO v BUNSOM KEMLO

(ESTATE OF THE LATE WARREN FRANK KEMLO)

JUDGMENT

1 His Honour: This is an application under the Family Provision Act 1987 (‘the Act’) in respect of the late Warren Frank Kemlo who died on 22 May 2007 aged 74 years. His first wife predeceased him and after her death he had a de facto relationship which lasted for some years. That partner has been given notice of the proceedings and she makes no claim.

2 The deceased met the defendant, Bunsom Kemlo, in Thailand in 1989. The defendant moved to Australia and she and the deceased were married on 3 November 1989. The plaintiff, Tod Kemlo, his son from his first marriage survived the deceased.

Will of the deceased

3 By his will dated 23 March 2007 the deceased left a legacy of $10,000 to his son, Tod, $1,000 to his sister, Dawn Masters, and the rest of his estate to the defendant, his second wife. The estate had paid the legacies to Dawn Masters and Tod.

Estate of the deceased

4 The two principle assets in the estate are the matrimonial home at Oxley Street, Swansea and the deceased’s business premises at Union Street Wickham. The parties are agreed that at the time of the hearing the Union Street premises property was valued at $612,500. There is a dispute as to the value of the matrimonial home at Oxley. There was tendered in evidence without objection three valuations of the Oxley property. Mr SP Owens, a valuer, valued the property at $490,000…

Grounds of appeal

[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.

Continue reading Kemlo v Kemlo

Details

AGLC: Kemlo v Kemlo [2010] NSWSC 1331
Case: [2010] NSWSC 1331
Decision Date: 22 November 2010

CaseChat Overview and Summary

The case of Kemlo v Kemlo involved a dispute over the distribution of an estate under the Family Provision Act 1982. The applicant, a son, contended that he was left an inadequate legacy by his father, the deceased, and sought an increased legacy and a designation of a notional estate under s 28(1)(b) of the Act. The case was heard in the Supreme Court of South Australia.

The primary legal issue before the court was whether the son's claim under the Family Provision Act was justified. Specifically, the court needed to determine whether the son was left an inadequate legacy and whether there were special circumstances warranting a designation of the notional estate. The court considered the evidence regarding the deceased's financial situation, the son's contributions to the family, and the overall fairness of the estate distribution.

The court found that the son had indeed been left an inadequate legacy and that there were special circumstances warranting the designation of a notional estate. The court emphasised the son's significant contributions to the family, both financially and otherwise, and the lack of adequate provision for him in the deceased's will. The court concluded that the son's case met the criteria under the Act and ordered an increased legacy as well as a designation of a notional estate to ensure the son received a fair share of the estate.

The court's orders included an increased legacy for the son and a designation of the notional estate, ensuring the son received a fair distribution of the estate. The court's decision highlighted the importance of considering the contributions of family members and the overall fairness of the estate distribution under the Family Provision Act.

Orders