Direct the parties, within 14 days, to bring in short minutes of order to give effect to the matters referred to in Paragraph 251 of these reasons for judgment.
Catchwords:
SUCCESSION - FAMILY PROVISION - The Plaintiffs, two grandchildren of the deceased, each applies for a family provision order under Chapter 3 of the Succession Act 2006 - The Defendant the son of the deceased, to whom Probate of the deceased's Will was granted and to whom the estate left, in equal shares, with another son who predeceased the deceased - Meaning of "beneficiary of the deceased person's estate" - Deceased son the father of the Plaintiffs - That each Plaintiff is an eligible person and that there are factors which warrant the making of his and her application not in dispute - Whether adequate and proper provision not made in Will of the deceased for each Plaintiff - Nature of family provision order to be made - How the burden of provision made in favour of each Plaintiff and the costs ordered to be paid should be borne
[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
Nicholas v Nicholas [2013] NSWSC 697
Case
[2013] NSWSC 697
Decision Date
CaseChat Overview and Summary
The case of Nicholas v Nicholas involves a dispute over the deceased's estate between the Plaintiffs, the two grandchildren of the deceased, and the Defendant, the son of the deceased. The Plaintiffs are seeking a family provision order under Chapter 3 of the Succession Act 2006, claiming that the deceased did not make adequate and proper provision for them in his will. The deceased left his estate, in equal shares, to the Defendant and another son who predeceased the deceased. The central issue before the court was whether the Plaintiffs were beneficiaries of the deceased's estate and if adequate and proper provision was not made in the will for each Plaintiff.
The court considered the meaning of "beneficiary of the deceased person's estate" under the Succession Act 2006. It was determined that the Plaintiffs, being the grandchildren of the deceased, were indeed beneficiaries of the estate. The court also considered the factors that warranted the making of the Plaintiffs' application, which were not in dispute. The primary focus was on whether the deceased had made adequate and proper provision for the Plaintiffs in his will. The court found that the deceased had not made adequate and proper provision for the Plaintiffs, and as such, the Plaintiffs were entitled to a family provision order.
In reaching its decision, the court examined the nature of the family provision order to be made, as well as how the burden of the provision made in favour of each Plaintiff and the costs ordered to be paid should be borne. The court determined that the estate should be divided in such a way that the Plaintiffs received adequate and proper provision. The Defendant, as the primary beneficiary of the estate, would bear the burden of the provision made in favour of the Plaintiffs, as well as the costs ordered to be paid. The final orders of the court reflect this decision, with the estate being divided to provide adequate and proper provision for the Plaintiffs and the Defendant bearing the burden of the provision and costs.