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Kensey (bht NSW Trustee and Guardian) v Thomas

Kensey (bht NSW Trustee and Guardian) v Thomas

Case [2011] NSWSC 1434 16 December 2011

Family Provision Order

Adequate Provision

Succession Act 2006

Succession Law

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Supreme Court

New South Wales

Medium Neutral Citation: Kensey (bht NSW Trustee & Guardian) v Thomas [2011] NSWSC 1434
Hearing dates: 23 & 24 November 2011
Decision date: 16 December 2011
Jurisdiction: Equity Division
Before: Hallen AsJ
Decision:
1. Having found that the Plaintiff is an eligible person and that the provision made for her in the Will of the deceased is inadequate, order that the Plaintiff receive, in addition to the devise of the home unit at Penshurst, but in lieu of the other provision by way of legacy and share of residue made for her in the Will of the deceased, a lump sum of $500,000.
2. Order that the lump sum should be paid within 28 days, failing which, interest on any amount not so paid, should be paid at the rate prescribed for the purposes of s 84A(3) of the Probate and Administration Act 1898, as the rate of interest on legacies, calculated from that date until the date of payment.
3. Order that the Plaintiff's costs, calculated on the ordinary basis, and the Defendants' costs, calculated on the indemnity basis, be paid out of the estate of the deceased.
4. Order that the Court Book, the exhibits and subpoenaed material may be returned forthwith; any exhibits returned must be retained intact by the party, or person who produced the material until the expiry of the time to file an appeal, or until any appeal has been determined.
5. Grant leave to the Defendants to re-list the matter solely on the aspect of obtaining orders to adjust the interests affected by the making of the family provision order in favour of the Plaintiff.

Catchwords: Proceedings commenced by the NSW Trustee & Guardian, the tutor of the Plaintiff, a disabled person, in which a claim for a family provision order, under the Succession Act 2006 was sought - Only issue is whether adequate provision for proper maintenance education or advancement in life made in the Will of the deceased for the Plaintiff - Competing claims of beneficiaries none of whom or which is an eligible person
Legislation Cited: Family Provision Act 1982
Succession Act 2006
Probate and Administration Act 1898
Succession Amendment (Family Provision) Act 2008
Cases Cited: Bondelmonte v Blanckensee [1989] WAR 305
Bosch v Perpetual Trustee Co Ltd [1938] AC 463
Chan v Tsui [2005] NSWSC 82
Collins v McGain [2003] NSWCA 190
Cooper v Dungan (1976) 50 ALJR 539
Devereaux-Warnes v Hall [No 3] [2007] WASCA 235; (2007) 35 WAR 127
Diver v Neal [2009] NSWCA 54
Foley v Ellis [2008] NSWCA 288
Goodman v Windeyer (1980) 144 CLR 490
Gorton v Parks (1989) 17 NSWLR 1
Hawkins v Prestage (1989) 1 WAR 37
Hughes v National Trustees, Executors and Agency Co of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134
Kay v Archbold [2008] NSWSC 254
Kleinig v Neal (No 2) [1981] 2 NSWLR 532
McCosker v McCosker (1957) 97 CLR 566
Mayfield v Lloyd-Williams [2004] NSWSC 419
Neil v…

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 Kensey (bht NSW Trustee and Guardian) v Thomas

Details

AGLC: Kensey (bht NSW Trustee and Guardian) v Thomas [2011] NSWSC 1434
Case: [2011] NSWSC 1434
Decision Date: 16 December 2011

CaseChat Overview and Summary

The case of Kensey (bht NSW Trustee and Guardian) v Thomas was heard in the Supreme Court of New South Wales. The plaintiff, Kensey, is a disabled individual whose tutor, the NSW Trustee and Guardian, sought a family provision order under the Succession Act 2006. The plaintiff claimed that the deceased, Thomas, had not made adequate provision for the plaintiff's proper maintenance, education, or advancement in life in his will. The only issue in dispute was whether the deceased had made adequate provision for the plaintiff under the will.

The court needed to determine the meaning of "adequate provision" and whether the deceased had indeed made adequate provision for the plaintiff's proper maintenance, education, or advancement in life. The court also had to consider the competing claims of other beneficiaries and whether any of them were eligible persons under the Succession Act 2006. The court had to weigh the interests of the plaintiff against those of the other beneficiaries to reach a decision.

The court held that "adequate provision" meant that the deceased had provided enough for the plaintiff's reasonable needs, considering the plaintiff's disability and the resources available to the deceased at the time of making the will. The court found that the deceased had not made adequate provision for the plaintiff's proper maintenance, education, or advancement in life, as the provision made in the will was insufficient to meet the plaintiff's needs. The court also found that none of the other beneficiaries were eligible persons under the Succession Act 2006, and therefore, their claims did not affect the plaintiff's entitlement to a family provision order.

The court ordered that the deceased's estate be distributed in a way that provided adequate provision for the plaintiff's proper maintenance, education, or advancement in life. The court also ordered that the plaintiff's claim for a family provision order be granted, and that the other beneficiaries' claims be dismissed.

Orders