Supreme Court
New South Wales
- Amendment notes
Medium Neutral Citation: Limberger v Limberger; Oakman v Limberger [2021] NSWSC 474 Hearing dates: 8-11 March 2021 Date of orders: 6 May 2021 Decision date: 06 May 2021 Jurisdiction: Equity Before: Hallen J Decision: Directs the parties, within 10 days, to provide in hard and soft copy, Short Minutes of Order that reflect these reasons
Catchwords: SUCCESSION – Family Provision – Claims by two adult children 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 – No provision made for adult son of the deceased and limited provision made for the adult daughter of the deceased – Reasons for the lack of, and for the limited, provision made for each Plaintiff stated in the Will of the deceased – Periods of lack of close contact between adult daughter and the deceased, and in the case of the adult son, complete estrangement for about 30 years – Reconciliation before death of the deceased - Significant competing claim of the Defendant, who is entitled to 50 per cent of the deceased’s estate – Balance of estate left to other son who predeceased the deceased, which share passes to grandchildren of the deceased – Whether each Plaintiff has been left without adequate provision for his, and her, proper maintenance and advancement in life – Whether an order for provision should be made for each Plaintiff’s proper maintenance and advancement in life and, if so, in what amount – Provision to be made for each Plaintiff and, in the case of the adult daughter, that provision in lieu of the provision made for her in the deceased’s Will
Legislation Cited: Probate and Administration Act 1898 (NSW)
Succession Act 2006 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW)
Cases Cited: Alexander v Jansson (2010) 6 ASTLR 432; [2010] NSWCA 176
Anasson v Phillips (Supreme Court (NSW), Young J, 4 March 1988, unrep)
Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308
Bartlett v Coomber [2008] NSWCA 100
Bindoff v The Trust Company (Australia) Ltd; Estate of the late Everitt Joseph Griffiths [2016] NSWSC 1100
Bkassini v Sarkis [2017] NSWSC 1487
Boettcher v Driscoll (2014) 119 SASR 523; [2014] SASC 86
Bondelmonte v Blanckensee [1989] WAR 305
Borebor v Keane (2013) 11 ASTLR 96; [2013] VSC 35
Bowditch v NSW Trustee and Guardian [2012] NSWSC 275
Bowyer v Wood (2007) 99 SASR 190; [2007] SASC 327
Burke v Burke (No 2) [2015] NSWCA 195
Camden v McKenzie [2007] QCA 136
Carey v Robson (No 2) [2009] NSWSC 1199
Chan v Chan (2016) 15 ASTLR 317
Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392
Christie v Manera [2006] WASC 287
Crossman v Riedel [2004] ACTSC 127
de Angelis v de Angelis [2003] VSC 432
Devereaux-Warnes v Hall (No 3) (2007) 35 WAR 127; [2007] WASCA 235
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- Case
- [2021] NSWSC 474
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether the plaintiffs were left without adequate provision for their proper maintenance and advancement in life. It needed to weigh the reasons for the deceased's actions, including the periods of estrangement and reconciliation before the deceased's death. The court also had to consider the competing claim of the defendant, who was entitled to 50% of the deceased's estate. The court had to decide if and to what extent provision should be made for each plaintiff and, if so, the appropriate amount.
The court found that the deceased's reasons for not providing for the adult son and providing limited provision for the adult daughter were not unreasonable, given the long periods of estrangement. However, the court found that the adult daughter was left without adequate provision for her proper maintenance and advancement in life. It concluded that the adult son's claim should be dismissed, but an order should be made in favour of the adult daughter. The court made an order for provision to be made for the adult daughter in lieu of the provision made for her in the deceased's will.
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