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Nicholas v Nicholas

Nicholas v Nicholas

Case [2013] NSWSC 697 4 June 2013

Family Provision Order

Beneficiary of the Deceased's Estate

Adequate and Proper Provision

Succession Law

Family Law

Type to search within this case.

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Nicholas v Nicholas [2013] NSWSC 697
Hearing dates: 20 May 2013
Decision date: 04 June 2013
Jurisdiction: Equity Division
Before: Hallen J
Decision:
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
Legislation Cited: Civil Liability Act 2002
Family Provision Act 1982
Probate and Administration Act 1898
Property (Relationships) Act 1984
Succession Act 2006
Succession Amendment (Family Provision) Act 2008
Uniform Civil Procedure Rules 2005
Cases Cited: Alexander v Jansson [2010] NSWCA 176
Allardice, In re; Allardice v Allardice (1910) 29 NZLR 959
Andrew v Andrew [2012] NSWCA 308; (2012) 81 NSWLR 656
Bartlett v Coomber [2008] NSWCA 100
Borebor v Keane [2013] VSC 35
Bosch v Perpetual Trustee Co Ltd [1938] AC 463
Bowditch v NSW Trustee and Guardian [2012] NSWSC 275
Bowyer v Wood [2007] SASC 327; (2007) 99 SASR 190
Cameron v Read (1887) 13 VLR 849
Collins v McGain [2003] NSWCA 190
Cooper v Dungan (1976) 50 ALJR 539
Devereaux-Warnes v Hall (No 3) [2007] WASCA 235; (2007) 35 WAR 127
Diver v Neal [2009] NSWCA 54
Estate of the late Harrigan, Re; Cowmey v Whibley [2012] NSWSC 291
Foley v Ellis [2008] NSWCA 288
Franks v Franks [2013] NSWCA 60
Gardiner v Gardiner (NSWSC, 28 May 1998, unreported)
Gonzales v Claridades [2003] NSWSC 508; (2003) 58 NSWLR 188
Goodman v Windeyer (1980) 144 CLR 490
Gorton v Parks (1989) 17 NSWLR 1
Hakim, Re Estate of; Simons v Permanent Trustee Co Ltd [2005] NSWSC 223
Hyland v Burbidge [2000] NSWSC 12
Kay v Archbold [2008] NSWSC 254
Keep v Bourke [2012] NSWCA 64
Kembrey v Cuskelly [2008] NSWSC 262
Kleinig v Neal (No 2) (1981) 2 NSWLR 532
McCosker v McCosker (1957) 97 CLR 566
Mayfield v Lloyd-Williams [2004] NSWSC 419
Nowak v Beska [2013] NSWSC 166
O'Brien v McCormick [2005] NSWSC 619
O'Dea v O'Dea [2005] NSWSC 46
Oldereid v Chan [2013] NSWSC 434
Palaganio v Mankarios [2011] NSWSC 61

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 Nicholas v Nicholas

Details

AGLC: Nicholas v Nicholas [2013] NSWSC 697
Case: [2013] NSWSC 697
Decision Date: 04 June 2013

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.

Orders