1. Having found that each Plaintiff is an eligible person and that the provision made for her in the Will of the deceased is inadequate, order that the first Plaintiff is to receive out of the estate of the deceased in New South Wales, a lump sum of $79,000 and the second Plaintiff is to receive a lump sum of $93,000.
2. Order that each of the lump sums should be paid within 28 days, or such other time as the parties agree, failing which, interest on any amount not so paid, should be paid at the rates prescribed for the purposes of s 84 of the Probate and Administration Act1898, as the rate of interest on legacies, calculated from that date until the date of payment.
3. Order that each of the lump sums and any interest accrued thereon should constitute a charge on the Wollongong property until it is paid.
5. Defer question of costs for further argument if the parties are unable to agree.
Catchwords:
Family provision order sought by two daughters of deceased under the Family Provision Act 1982 - Whole estate left to son who looked after deceased - Whether jurisdictional issue established and if so, nature and quantum of provision to be made.
[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
Lajcarova v Todorov [2011] NSWSC 522
Case
[2011] NSWSC 522
Decision Date
CaseChat Overview and Summary
Lajcarova v Todorov involved two daughters seeking a family provision order against the estate of their father, who had passed away. Their father had left his entire estate to his son, who had been the primary caregiver during his illness. The daughters argued that this distribution was unfair and sought financial provision from the estate under the Family Provision Act 1982. The court was tasked with determining whether a jurisdictional issue had been established and, if so, what provision, if any, should be made.
The central legal issues before the court were whether the daughters had established a jurisdictional issue and, if so, the appropriate nature and quantum of any provision to be made. The daughters contended that the father's decision to leave his estate solely to his son was unreasonable, particularly given the son's pre-existing financial resources. The son, on the other hand, argued that the father's decision was a valid exercise of his testamentary freedom, reflecting the care he had provided.
In delivering the judgment, the court first considered whether the daughters had made out a jurisdictional issue by demonstrating that the disposition of the estate was inequitable or unjust. The court found that the daughters had indeed established such an issue, noting the disparity between the father's treatment of his children and the significant care provided by his son. However, in assessing the appropriate remedy, the court also weighed the son's contributions and the father's intent. Ultimately, the court ordered a modest financial provision to be made to the daughters, reflecting the inequity identified but also taking into account the son's role as the primary caregiver.