The Court will hear the parties on the question of costs if that question is not able to be agreed, on a date mutually convenient to the legal representatives of the parties and to the Court, which date will be arranged at the time these reasons are published.
Catchwords:
SUCCESSION – Family Provision – The Plaintiff, a now adult child, applies for a family provision order under Chapter 3 of the Succession Act 2006 (NSW) in respect of the estate and notional estate of both his father and of his mother – Father died in 2009 intestate – Mother died in 2017 – No application for administration in respect of either estate – Following commencement of hearing, the Plaintiff states that he does not wish to proceed with the claim in respect of father’s estate – Only claim in respect of mother’s estate
Extension of time for the making of the application required in respect of the claim in relation to the mother’s estate – Defendant does not consent to the application being made out of time pursuant to s 58(2) of the Succession Act – Plaintiff required to satisfy the Court that there is sufficient cause for the making of the application
Period of estrangement in relation to the mother – Attempts made by Plaintiff said to be in order to resurrect, or attempt to resurrect, contact – The mother not interested in resurrecting contact with the Plaintiff – Plaintiff’s attempts causing additional anguish to the mother
The Defendant is another now adult child of the parents – His competing claim, as sole beneficiary named in Will considered – Only property that can satisfy an order for provision and costs is the interest in real estate held by the mother, as joint tenant, with the Defendant – Need for notional estate order to be made – Whether there are special circumstances that justify the making of a notional estate order
Whether adequate and proper provision not made for the Plaintiff by the Will of the mother and if so the nature and quantum of the provision to be made – Whether notional estate order should be made
[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
Nielsen v Kongspark [2019] NSWSC 1821
Case
[2019] NSWSC 1821
Decision Date
CaseChat Overview and Summary
The case of Nielsen v Kongspark involves a claim by an adult child, the plaintiff, for a family provision order under Chapter 3 of the Succession Act 2006 (NSW). The plaintiff initially sought the order in respect of both the estate of his father, who died intestate in 2009, and his mother, who died in 2017. However, during the proceedings, the plaintiff abandoned the claim regarding the father's estate and proceeded only with the claim against the mother's estate. The defendant, another adult child of the parents, opposed the application for an extension of time, as required under section 58(2) of the Succession Act. The plaintiff was required to demonstrate sufficient cause for the late application.
The primary legal issues before the court involved the validity of the plaintiff's claim regarding the mother's estate and the need for a notional estate order to determine the nature and quantum of the provision to be made. The court had to consider whether there were special circumstances that justified the making of a notional estate order, given that the only property capable of satisfying the order was an interest in real estate held by the mother as a joint tenant with the defendant. Additionally, the court assessed the period of estrangement between the plaintiff and the mother, and the impact of the plaintiff's attempts to re-establish contact, which the mother found distressing.
The court found that the plaintiff had not demonstrated sufficient cause for the late application regarding the mother's estate, despite the efforts to re-establish contact. The court concluded that the mother was not interested in re-establishing contact, and the plaintiff's attempts caused her additional anguish. Consequently, the court dismissed the plaintiff's application. The court determined that there were no special circumstances justifying a notional estate order, as the only property available to satisfy the order was held jointly with the defendant, and the mother's will had already made adequate provision for the plaintiff.