Maynard v Maynard

Case [2018] NSWSC 1961


Supreme Court


New South Wales

Medium Neutral Citation: Maynard v Maynard [2018] NSWSC 1961
Hearing dates: 13 and 14 August 2018
Date of orders: 14 December 2018
Decision date: 14 December 2018
Jurisdiction:Equity - Family Provision List
Before: Robb J
Decision:

(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
Legislation Cited: Succession Act 2008 (NSW)
Family Provision Act 1982 (NSW)
Cases Cited: Amos v Hogg [2018] NSWSC 1226
Sgro v Thompson [2017] NSWCA 326
Page v Page [2017] NSWCA 141
Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40
Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308
Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11
Lodin v Lodin; Estate of Dr Mohammed Masoud Lodin [2017] NSWSC 10
Underwood v Gordon [2014] NSWSC 1055
Gardiner v Gardiner [2014] NSWSC 435
Sreckovic v Sreckovic [2018] NSWSC 1597
Poletti v Jones [2015] NSWCA 107
Butler v Morris [2012] NSWSC 748
Kohari v Trustee and Guardian (NSW) (No 2) [2017] NSWSC 1080
Slack v Rogan; Palfry v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522
DJ Singh v DH Singh and Others [2018] NSWCA 30
Vidler v Ivimey [2013] NSWSC 1605
Grey v Harrison [1997] 2 VR 359
Category:Principal judgment
Parties: Marcelle Zeneetha Maynard (plaintiff)
Josephine Maynard (defendant)
Representation:

Counsel:
A Moutasallem (plaintiff)
L Ellison SC (defendant)

  Solicitors:
T & S Law Firm (plaintiff)
Marsdens Law Group (defendant)
File Number(s): 2017/192298

Judgment

  1. 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.

  2. 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.

  3. The only other person who has an interest in these proceedings…

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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.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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