(i) Declare that the 3,219 ordinary shares in Westpac Banking Corporation, held in the names of the Plaintiff and the deceased, at the date of the deceased's death, do not form part of the property of her estate and that the Plaintiff is beneficially entitled to all of those shares.
(ii) Having found that the Plaintiff is an eligible person, and that the provision made for him in the Will of the deceased is inadequate for his proper maintenance or advancement in life, order that he receive a lump sum of $55,000 out of the estate of the deceased.
(iii) Order that the burden of the provision made for the Plaintiff should be paid out of the residuary estate.
(iv) Order that no interest is to be paid on the lump sum, if that lump sum is paid within 14 days of the making of these orders; otherwise, interest calculated at the rate prescribed by s 84A(3) Probate and Administration Act 1898, on unpaid legacies, is to be paid from that date until the date of payment of the lump sum.
(v) Order that the Cross-Claim be dismissed.
(vi) Order that the costs of the parties be determined after further submissions, unless agreement is reached between them.
(vii) Order that the Exhibits should be dealt with in accordance with the Uniform Civil Procedure Rules 2005 following the determination of the costs of the proceedings.
(viii) Order that the Court Book be returned.
Catchwords:
SUCCESSION - The Plaintiff makes a claim for a family provision order as a child of the deceased - Defendant is a solicitor and the executor appointed in the Will of the deceased, to whom Probate was granted -The principal beneficiaries are the grandchildren of the deceased - Competing claimants as beneficiaries on the bounty of the deceased although not eligible persons under the Act - Whether family provision order should be made for the Plaintiff and if so nature of the order
[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
Kohari v Snow [2013] NSWSC 452
Case
[2013] NSWSC 452
Decision Date
CaseChat Overview and Summary
The matter before the court involved the plaintiff, Kohari, who sought a family provision order as a child of the deceased. The defendant, Snow, is a solicitor who was appointed as the executor of the deceased's will, which was subsequently granted probate. The primary beneficiaries of the estate were the grandchildren of the deceased. Kohari contested the distribution of the estate, asserting that as a child of the deceased, he was entitled to a family provision order. This was contested by the executor, who argued that the deceased had adequately provided for Kohari through other means.
The central legal issue before the court was whether a family provision order should be granted to Kohari, given that the principal beneficiaries were the grandchildren of the deceased. The court had to consider the relevant provisions of the Family Provision Act and assess whether the deceased had made reasonable financial provision for Kohari. The court also needed to determine the appropriate nature and extent of any order that might be made, taking into account the competing claims of the beneficiaries.
The court examined the evidence and submissions from both parties, assessing the deceased's overall financial position and the provisions made in the will. The court noted that while the deceased had provided for Kohari through other means, there was a significant disparity in the distribution of the estate between Kohari and the grandchildren. The court held that the deceased had not made reasonable financial provision for Kohari and that a family provision order was warranted. The court ordered that Kohari be paid a sum of money from the estate, which was deemed to be reasonable financial provision.
The court ordered that the executor distribute a sum of money to Kohari from the estate. This amount was intended to constitute reasonable financial provision for Kohari, taking into account the overall circumstances of the case and the competing interests of the beneficiaries.