Supreme Court
New South Wales
- Amendment notes
Medium Neutral Citation: Noble v Durrant [2023] NSWSC 513 Hearing dates: 27, 29-30 June 2022, 1 July 2022 Date of orders: 12 May 2023 Decision date: 17 May 2023 Jurisdiction: Equity - Family Provision List Before: Richmond J Decision: Summons dismissed.
Catchwords: SUCCESSION – family provision – claim by adult nieces – where plaintiffs lived in deceased’s father’s house during their childhood – whether plaintiffs each an eligible person – whether there were factors warranting plaintiffs’ application – factors warranting application – whether inadequate provision for the proper maintenance, education or advancement in life for each of the plaintiffs – should court exercise its discretion to make an order for provision in favour of either plaintiff – application for provision refused
Legislation Cited: Family Provision Act 1982 (NSW)
Succession Act2006 (NSW) ss 3, 57, 59, 60
Cases Cited: Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308
Bassett v Bassett [2021] NSWCA 320
Blendell v Blendell [2020] NSWCA 154
Collings v Vakas [2006] NSWSC 393
Lodin v Lodin [2017] NSWCA 327; 16 ASTLR 576
Mallitt v Gow [2022] NSWSC 1012
Maynard v Maynard [2018] NSWSC 1961
Phillips v James (2014) 85 NSWLR 619; [2014] NSWCA 4
Re FulopDeceased (1987) 8 NSWLR 679
Sgro v Thompson [2017] NSWCA 326
Singh v Singh [2018] NSWCA 30; 17 ASTLR 317
Slack v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522
Spata v Tumino (2018) 95 NSWLR 706; [2018] NSWCA 17
Sreckovic v Sreckovic [2018] NSWSC 1597
Steinmutz v Shannon (2018) 99 NSWLR 687; [2019] NSWCA 114
Texts Cited: GE Dal Pont, Law of Succession (3rd ed, 2021, LexisNexis)
Category: Principal judgment Parties: Charlotte Noble (First Plaintiff)
Carolyn Noble (Second Plaintiff)
Donald Henry Durrant (First Defendant)
Linda Mae Allen (Second Defendant)Representation: Counsel:
Solicitors:
D Reid (Plaintiffs)
N Bilinsky (Defendants)
Premier Compensation Lawyers (Plaintiffs)
Parker & Kissane (Defendants)
File Number(s): 2021/200483
Judgment
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Belinda Ruth Noble (the deceased) died on 16 July 2020. At the time of her death, she was 53 years old. By a Summons filed on 13 July 2021, the plaintiffs, Charlotte Noble (Charlotte) and Carolyn Noble (Carolyn), each seek a family provision order pursuant to s 59 of the Succession Act 2006 (NSW) (the Act) out of the deceased’s estate. The plaintiffs are nieces of the deceased. They also seek an order for their costs of the proceedings to be paid out of the estate.
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The defendants are Donald Durrant and Linda Allen who are the executors of the deceased’s estate to whom probate was granted on 19 October 2020.
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As is customary in matters of this kind, and without meaning any disrespect, I will refer to the members of the deceased’s family by their first names.
The deceased’s estate
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In the inventory of property which was attached to the Grant of Probate, the deceased’s estate was disclosed as comprising cash…
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- AGLC
- Noble v Durrant [2023] NSWSC 513
- Case
- [2023] NSWSC 513
- Decision Date
CaseChat Overview and Summary
The court examined the criteria set out in the Family Provision Act to determine if the plaintiffs qualified as eligible persons. It considered the relationship between the plaintiffs and the deceased, and the nature and duration of their residence in the deceased’s father's house. The court found that the plaintiffs had not established that they were each eligible persons under the Act. Additionally, the court assessed whether there were factors warranting the application, such as inadequate provision for the proper maintenance, education, or advancement in life of the plaintiffs. After reviewing the evidence, the court concluded that the plaintiffs had not demonstrated that they had been inadequately provided for. Therefore, the court determined that there were no grounds to exercise its discretion in favour of the plaintiffs.
In light of the findings, the court dismissed the plaintiffs' application for family provision. The court held that the plaintiffs were not eligible persons under the Family Provision Act, and that there were no factors warranting the application. Consequently, the court did not make any order for provision in favour of either plaintiff. The decision underscores the stringent criteria that must be met for a family provision application to succeed, particularly regarding eligibility and the presence of warranting factors.
Orders
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Background
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Decision
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