Stand the proceedings over for the making of orders in favour of the Plaintiff and which reflect the reasons for judgment and to enable the Defendant to precisely identify the bank account holding the amount sufficient to satisfy the order for provision to be made in favour of the Plaintiff
Catchwords:
PRACTICE & PROCEDURE – Self-represented Defendant at the hearing – Application by Defendant to have non-lawyer, who was a witness, to represent her at the hearing or appear as McKenzie friend – Duty of the Court to ensure fair hearing to both parties – Application refused.
SUCCESSION – FAMILY PROVISION – Eligibility of Plaintiff as a child of the deceased disputed based on statement made by the deceased – Presumptions to be applied – whether rebutted - Court not satisfied presumptions rebutted – Claim for family provision order under Part 3.2 of the Succession Act 2006 (NSW) – The Defendant, the executor of the Will of the deceased and wife of the deceased at the date of death – Probate granted – Defendant the sole beneficiary named in Will – Actual estate consisting of small amount of cash – Notional estate said to be deceased’s interest as joint tenant in real estate and in joint bank accounts held with Defendant – Jointly held property transmitted to the Defendant – Order sought designating deceased’s interest in jointly held property as notional estate – Whether adequate and proper provision not made in Will of the deceased for the Plaintiff – Whether order designating property as notional estate should be made – Nature and quantum of provision, if any, that ought to be made for the Plaintiff.
[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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AGLC
Morier v Liem [2016] NSWSC 582
Case
[2016] NSWSC 582
Decision Date
CaseChat Overview and Summary
The case of Morier v Liem involved a dispute over family provision under the Succession Act 2006 (NSW). The Plaintiff sought a family provision order against the estate of their deceased father, contesting the adequacy of the provisions made in the father's Will. The Defendant, who was the executor and wife of the deceased at the time of his death, opposed the Plaintiff's claim. The matter was heard in the Supreme Court of New South Wales.
The central legal issues were whether the Plaintiff was eligible to make a claim under the Act as a child of the deceased, and if the presumptions of eligibility were rebutted by the deceased's statements. Additionally, the court needed to determine whether adequate and proper provision had been made in the Will and if the notional estate should include the deceased's interest in jointly held property. The court also had to decide on the nature and quantum of any provision that should be made for the Plaintiff.
The court held that the Plaintiff was not eligible to make a claim as a child of the deceased because the presumptions of eligibility were not rebutted. The court was not satisfied that the Plaintiff had established the necessary connection with the deceased. Additionally, the court found that the Defendant had made adequate and proper provision for the Plaintiff in the Will. The court also ruled that the notional estate did not include the deceased's interest in the jointly held property. Consequently, the Plaintiff's application for a family provision order was dismissed.
In conclusion, the court's decision was that the Plaintiff's claim was not eligible under the Succession Act, and the Defendant's provision in the Will was deemed adequate and proper. The Plaintiff's application for a family provision order was dismissed, and no order was made designating the deceased's interest in jointly held property as the notional estate.