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Neil v Jacovou

Neil v Jacovou

Case [2011] NSWSC 87 28 February 2011

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Neil v Jacovou [2011] NSWSC 87
Hearing dates: 15 March 2010, 16 March 2010, 17 March 2010, 9 April 2010
Decision date: 28 February 2011
Jurisdiction: Equity Division
Before: Slattery J
Decision:
Catchwords: SUCCESSION - Family provision and maintenance - pre-nuptial agreement - mutual releases - rights under Family Provision Act - whether release of rights should be approved after death of one of parties - Family Provision Act, s 31- extent of circumstances considered on approval - HELD - inadequate explanation of release - due consideration to release not given - Family Provision Act, s 31(5)(d) - further whether adequate provision made for widow and daughter of deceased - Family Provision Act s 7 and s 9 - daughter not provided for in will - assets bequeathed to widow produce uncertain income - what is necessary for the "proper" maintenance, education and advancement in life of the widow and child of the deceased - HELD - inadequate provision made by deceased out of his estate for the proper maintenance, education and advancement in life of daughter - and inadequate provision made for advancement in life of widow - further provision made in favour of widow and daughter. TRUSTS - resulting trusts - deceased purchases property in his own name - evidence that purchase funded by trustee company not deceased - HELD - deceased holds property on resulting trust for company.
Legislation Cited: Family Law Act 1975 (Cth)
Family Law Amendment Bill (1999)
Family Provision Act 1982 (NSW), ss 6, 7, 9, 11, 31
Land Tax Management Act (NSW) 1956
Property (Relationships) Act (NSW) 1984 s 4
Cases Cited: Anderson v Teboneras [1990] VR 527
Blore v Lang (1960) 104 CLR 124
Calverley v Green (1985) 155 CLR 242
Charles Marshall Pty Limited v Grimsley (1956) 96 CLR 353
Luciano v Rosenblum (1985) 2 NSWLR 65
Mulcahy v Weldon [2002] NSWCA 206
Napier v Public Trustee (WA) (1980) 32 ALR 53
Re Buckland (deceased) [1966] VR 404
Russell v Quinton [2000] NSWSC 322
Singer v Berghouse (No 2) (1994) 181 CLR 201
Taylor v Farrugia [2009] NSWSC 801
Tchadovitch v Tchadovitch [2010] NSWCA 316
Vigolo v Bostin (2005) 221 CLR 191
Category: Principal judgment
Parties: Charli Neil by her Tutor Julie Neil
Second Plaintiff- Julie Neil
Defendant- Jack Jacovou
Representation: Counsel:
First & Second Plaintiff-D. Grieve QC; Ms D. Coulton
Defendant- P. Blackburn-Hart SC; Mr P. O'Loughlin
Solicitors:
First & Second Plainitff- Maria Salerno, Vizzone Ruggero & Associates
Defendant- Bernard Hayward, B Hayward & Co

File Number(s): 2007/254974
Publication restriction: No

Judgment

HIS HONOUR : Christopher Gregory Neil died on 18 September 2006 aged 51. The first plaintiff Julie Neil is his widow and the second plaintiff Charli Neil is his daughter. The plaintiffs seek orders under the Family Provision Act 1982 against the defendant executor of Chris Neil's estate, Mr Jack Jacovou.

Chris Neil left substantial property under a will dated 17 April 2003. Julie Neil received a specific…

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 Neil v Jacovou

Details

AGLC: Neil v Jacovou [2011] NSWSC 87
Case: [2011] NSWSC 87
Decision Date: 28 February 2011

CaseChat Overview and Summary

The case of Neil v Jacovou involves a dispute over the interpretation and enforcement of a pre-nuptial agreement between the parties, as well as claims under the Family Provision Act. The court was required to determine whether the release of rights under the pre-nuptial agreement should be approved after the death of one party, and whether adequate provision had been made for the widow and daughter of the deceased. The court also had to consider whether a property held in the deceased's name was held on a resulting trust for the trustee company. The court found that the release of rights under the pre-nuptial agreement was not adequately explained and due consideration had not been given to the release. The court also found that inadequate provision had been made for the proper maintenance, education, and advancement in life of the widow and daughter. Additionally, the court held that the property was held on a resulting trust for the trustee company as it was funded by the company, not the deceased. The court's decision highlights the importance of adequately explaining and considering releases of rights under pre-nuptial agreements, as well as the need to ensure adequate provision is made for dependents under the Family Provision Act. The court's finding on the resulting trust also demonstrates the importance of considering the true beneficial owner of property when determining the existence of a trust.

Orders