Equity - Succession & Probate List - Family Provision
Before:
Nixon J
Decision:
(1) Order pursuant to section 91(2) of the Succession Act 2006 (NSW) that administration in respect of the estate of the deceased, Raymond Leslie Morgan, late of 3010 Bucketts Way, Belbora 2422 in the State of New South Wales, be granted to the Plaintiff for the purposes only of permitting her application for a family provision order to be dealt with.
(2) Order that the Amended Summons filed on 14 August 2023 be dismissed.
(3) Direct that:
(a) the Defendant serve any submission in respect of costs by 4pm on 14 September 2023; and
(b) the Plaintiff serve any submission in response by 4pm on 21 September 2023.
Catchwords:
SUCCESSION – FAMILY PROVISION – Claim for family provision order by adult child of the deceased – Proceeding commenced outside the time prescribed by the Succession Act 2006 (NSW) for making the application – The Defendant a de facto spouse of the deceased – No actual estate out of which any order for provision could be made – The Defendant and the deceased owned property as joint tenants, which was subsequently sold with the proceeds being used by the Defendant to pay refundable accommodation deposit for care home - Application for order that refundable accommodation deposit be designated as notional estate, and for provision from balance of deposit – As Defendant does not consent, whether “sufficient cause” shown for making order extending time for making the application – No sufficient explanation given by the Plaintiff for not commencing proceedings within time – Order not made – In case that conclusion wrong, consideration also given to whether any order should be made designating the refundable accommodation deposit as notional estate of the deceased – Whether “special circumstances” existed to justify the making of a notional estate order – Whether discretion would have been exercised to make notional estate order, or family provision order – Proceeding is dismissed
[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
Morgan v Black [2023] NSWSC 1073
Case
[2023] NSWSC 1073
Decision Date
CaseChat Overview and Summary
In the matter of Morgan v Black, the plaintiff, an adult child of the deceased, sought a family provision order from the Supreme Court of New South Wales. The plaintiff argued that the defendant, the deceased's de facto spouse, should provide for them from the proceeds of the sale of a jointly owned property. The defendant argued that the application was made outside the prescribed time limit under the Succession Act 2006 (NSW) and that there was no estate from which to make a family provision order. Additionally, the proceeds from the sale of the jointly owned property were used by the defendant to pay a refundable accommodation deposit for a care home. The plaintiff sought an order that the refundable accommodation deposit be designated as a notional estate and that they be provided for from the balance of the deposit.
The court had to decide whether the plaintiff had demonstrated sufficient cause for extending the time for making the application. The court also had to consider whether the plaintiff's explanation for not commencing proceedings within the time limit was sufficient. The court further considered whether the refundable accommodation deposit could be designated as the notional estate of the deceased, and if so, whether any order should be made for family provision from the balance of the deposit. The court also had to determine if there were special circumstances that justified the making of a notional estate order and whether the discretion would have been exercised to make such an order or a family provision order.
The court found that the plaintiff had not shown sufficient cause for extending the time for making the application and that there was no sufficient explanation given by the plaintiff for not commencing proceedings within the time limit. The court also held that the refundable accommodation deposit could not be designated as the notional estate of the deceased and that there were no special circumstances that justified the making of a notional estate order. The court held that the discretion would not have been exercised to make a notional estate order or a family provision order. Therefore, the proceeding was dismissed.