(1) Order that the plaintiff’s summons is dismissed.
(2) Order that the defendant is entitled to be paid her costs out of the estate of the deceased on the indemnity basis.
(3) Note that the defendant is entitled to an order that the plaintiff pay her costs on the ordinary basis, but the Court will hear the parties if the defendant applies for any special order for costs.
Catchwords:
SUCCESSION – Family provision – Claim by adult child for provision from the deceased’s estate under Chapter 3 of the Succession Act 2006 (NSW) – Consideration of whether the application of s 59 of the Succession Act involves a one-stage or two-stage process in the light of relevant authorities, and matters relevant to how those processes may be applied – Where a capable testator has with knowledge that he is suffering from a terminal illness made a new will on the basis of the apparently careful consideration of his testamentary obligations to relevant parties – Where the testator gives his actual estate equally to his wife and two daughters – Claim for family provision order dismissed
Counsel: A Moutasallem (plaintiff) L Ellison SC (defendant)
Solicitors: T & S Law Firm (plaintiff) Marsdens Law Group (defendant)
File Number(s):
2017/192298
Judgment
The plaintiff, Marcelle Zeneetha Maynard, commenced these proceedings by summons filed on 27 June 2017 seeking a family provision order under Ch 3 of the Succession Act 2008 (NSW) out of the estate of the late Basil Patrick Maynard. The plaintiff is a daughter of the deceased.
The defendant is Josephine Patricio Maynard, who is the widow of the deceased and the executor nominated under the deceased’s will made on 11 March 2016.
The only other person who has an interest in these proceedings…
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.
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Details
AGLC
Maynard v Maynard [2018] NSWSC 1961
Case
[2018] NSWSC 1961
Decision Date
CaseChat Overview and Summary
The case of Maynard v Maynard involved a claim by an adult child for provision from the deceased's estate under Chapter 3 of the Succession Act 2006 (NSW). The deceased, who was suffering from a terminal illness, had made a new will that distributed his estate equally between his wife and two daughters. The claimant, an adult child, argued that the will did not adequately provide for her needs and sought a family provision order under the relevant provisions of the Succession Act.
The primary legal issue the court had to decide was whether the application of section 59 of the Succession Act involves a one-stage or two-stage process. The court needed to consider the relevant authorities and examine the circumstances surrounding the making of the will. Specifically, the court had to determine if the testator's knowledge of his terminal illness and the apparent careful consideration of his testamentary obligations to relevant parties affected the process of evaluating the claim for family provision.
The court found that the application of section 59 involved a two-stage process. In the first stage, the court considered whether the deceased had made proper provision for the claimant by making the will. In the second stage, if the court found that the will did not make proper provision, it would consider whether to grant a family provision order under section 61. The court concluded that the deceased had indeed made proper provision for the claimant by making the will, as it reflected careful consideration of his obligations. Consequently, the claimant's application for a family provision order was dismissed.