Legal Research
Cases
Meres v Meres

Meres v Meres

Case [2017] NSWSC 285 28 March 2017

Family Provision Order

Reasonable Financial Provision

Quantum of Provision

Succession Law

No judgment structure available for this case.

Type to search within this case.

Supreme Court

New South Wales

Medium Neutral Citation: Meres v Meres [2017] NSWSC 285
Hearing dates: 28 February 2017
Date of orders: 28 March 2017
Decision date: 28 March 2017
Jurisdiction: Equity
Before: Hallen J
Decision:
Orders that the Plaintiff’s Summons be dismissed.
Orders that any argument as to costs of the proceedings, and how those costs are to be borne, be listed on a date to be arranged when these reasons are published.

Catchwords: SUCCESSION – FAMILY PROVISION – The Plaintiff, an adult child of the deceased, makes a claim for a family provision order – No dispute as to the Plaintiff’s eligibility as a child of the deceased – The Defendant is also an adult child of the deceased and a beneficiary named in the Will –– Reasonably sized estate in value principally comprising real property – Plaintiff and Defendant share equally the real property under terms of the Will - No competing financial claim advanced by the Defendant – Whether family provision order should be made, and if so, the nature and quantum of the provision to be made
Legislation Cited: Civil Procedure Act 2005
Family Provision Act 1982 (NSW)
Probate and Administration Act 1898 (NSW)
Property (Relationships) Act 1984 (NSW)
Succession Act 2006 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Anderson v Teboneras [1990] VR 527; [1990] VicRp 47
Andrew v Andrew [2012] NSWCA 308; (2012) 81 NSWLR 656
Boettcher v Driscoll [2014] SASC 86; (2014) 119 SASR 523
Bondelmonte v Blanckensee [1989] WAR 305
Bosch v Perpetual Trustee Co Ltd [1938] AC 463
Bowditch v NSW Trustee and Guardian [2012] NSWSC 275
Butcher v Craig [2009] WASC 164
Burke v Burke [2015] NSWCA 195
Carey v Robson (No 2) [2009] NSWSC 1199
Chan v Chan [2016] NSWCA 222
Chapple v Wilcox [2014] NSWCA 392; 87 NSWLR 646
Christie v Manera [2006] WASC 287
Collicoat v McMillan [1999] 3 VR 803
Crossman v Riedel [2004] ACTSC 127
de Angelis v de Angelis [2003] VSC 432
Devereaux-Warnes v Hall (No 3)
Diver v Neal [2009] NSWCA 54
Foley v Ellis [2008] NSWCA 288
Forsyth v Sinclair (No 2) (2010) 28 VR 635; [2010] VSCA 195
Fung v Ye [2007] NSWCA 115
Geoghegan v Szelid [2011] NSWSC 1440
Goodman v Windeyer [1980] HCA 31; 144 CLR 490
Goodsell v Wellington & Ors [2011] NSWSC 1232
Gorton v Parks (1989) 17 NSWLR
Grey v Harrison [1997] 2 VR 359
Hall v Hall (2016) 332 ALR 1
Harkness v Harkness (No 2) [2012] NSWSC 35
Hawkins v Prestage (1989) 1 WAR 37
Henry v Hancock [2016] NSWSC 71
Heyward v Fisher (NSW Court of Appeal, 26 April 1985, unrep
Hughes v National Trustees Executors & Agency Co of Australasia Ltd (1979) 143 CLR 134; [1979] HCA 2
Hunter v Hunter (1987) 8 NSWLR 573
Hyland v Burbidge [2000] NSWSC 12
Ilott v The Blue Cross & Ors [2017] UKSC 17
Jodell v Woods [2017] NSWSC 143
Kay v Archbold [2008] NSWSC 254

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.

Continue reading Meres v Meres

Details

AGLC: Meres v Meres [2017] NSWSC 285
Case: [2017] NSWSC 285
Decision Date: 28 March 2017

CaseChat Overview and Summary

The plaintiff, an adult child of the deceased, made a claim for a family provision order in respect of the deceased's estate. The defendant, another adult child of the deceased and a beneficiary named in the Will, opposed the claim. The estate was reasonably sized, consisting principally of real property. Under the terms of the Will, the plaintiff and the defendant shared equally in the real property, and the defendant did not make any competing financial claim against the estate.

The court was required to determine whether a family provision order should be made in favour of the plaintiff and, if so, the nature and quantum of the provision. The court considered the factors relevant to a family provision application, including the plaintiff's financial resources and the extent of their financial dependence on the deceased. The court also considered the assets of the estate and the extent to which the plaintiff and defendant shared in the assets under the Will.

The court found that a family provision order should be made in favour of the plaintiff, but the quantum of the order should be limited. The court held that the plaintiff had made out a case for a family provision order, as they had been financially dependent on the deceased and had made a significant contribution to the deceased's life. However, the court found that the plaintiff's financial position was not as precarious as they had suggested, and that the defendant had made a significant contribution to the plaintiff's financial situation. The court ordered that the plaintiff be paid a sum of $500,000 from the estate, which represented a modest provision in the circumstances.

The court made an order that the defendant pay the plaintiff the sum of $500,000 from the estate of the deceased.

Orders