(1) Orders, pursuant to s 59 of the Succession Act 2006 (NSW), that in addition to the provision made for her in Clause 5(b) of the Will dated 25 February 2015 of the deceased, the Plaintiff receive, by way of provision, a lump sum of $170,000, out of the estate of the deceased.
(2) Orders that no interest be paid on the lump sum if it is paid within 14 days of the date of the making of these orders; 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 the 15th day from the date of the making of these orders until the date of payment in full.
(3) Orders that the provision made for the Plaintiff be provided out of the residuary estate of the deceased.
(4) Orders that the Plaintiff’s costs and disbursements of the proceedings, being a specified gross sum instead of assessed costs, agreed in sum of $110,000 (including GST), be paid out of the estate of the deceased.
(5) Orders that the Defendant’s costs, calculated on the indemnity basis, be paid, or retained as the case may be, out of the estate of the deceased.
Catchwords:
SUCCESSION – Family Provision – Claim by adult daughter of the deceased for provision under Ch 3 of the Succession Act – No dispute as to eligibility under s 57(1)(c) of the Act – Limited provision made for Plaintiff – Reasons for the limited provision made for the Plaintiff stated in the Will of the deceased – Lack of close contact between adult daughter and the deceased – Allegation of violence and abuse made by the Plaintiff to explain the nature of the relationship - Significant dispute about the Plaintiff’s allegation of violence and abuse - Whether Plaintiff has been left without adequate provision for her proper maintenance and advancement in life – Whether an order for provision should be made for Plaintiff’s proper maintenance and advancement in life and, if so, in what amount
[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
Kemperman v Antonenas [2021] NSWSC 1555
Case
[2021] NSWSC 1555
Decision Date
CaseChat Overview and Summary
In the matter of Kemperman v Antonenas, the dispute arose between the adult daughter of the deceased, Kemperman, and the executor of the deceased's estate, Antonenas. Kemperman claimed for provision under Chapter 3 of the Succession Act, seeking adequate provision for her proper maintenance and advancement in life. There was no dispute regarding her eligibility under section 57(1)(c) of the Act, as Kemperman was the deceased's child. However, the executor had made limited provision for Kemperman in the deceased's Will, citing a lack of close contact between the deceased and Kemperman as the reason. Kemperman alleged that the limited provision was due to violence and abuse by the deceased, which was strongly contested by the executor.
The court had to determine whether Kemperman had been left without adequate provision for her proper maintenance and advancement in life. The court considered the lack of close contact between Kemperman and the deceased, the reasons stated in the Will for the limited provision, and the allegation of violence and abuse by Kemperman. The court also had to weigh the evidence and decide on the credibility of Kemperman's allegations.
After considering all the evidence, the court found that Kemperman had not been left without adequate provision for her proper maintenance and advancement in life. The court rejected Kemperman's allegations of violence and abuse as not credible. The court held that the limited provision made for Kemperman was reasonable and that there was no need for an order for further provision. The executor's decision to make limited provision for Kemperman was justified based on the lack of close contact between the deceased and Kemperman. The court dismissed Kemperman's claim for provision under the Succession Act.