Directs the parties, within 10 days, to provide in hard and soft copy, Short Minutes of Order that reflect these reasons
Catchwords:
SUCCESSION – Family Provision – Claim by adult child of the deceased for provision under Ch 3 of the Succession Act – No dispute as to eligibility under s 57(1)(c) of the Act – Some provision made for him in the last Will of the deceased – Reasons for the limited provision made for the Plaintiff stated by the deceased – Dispute as to accuracy of reasons – Significant competing claim of one Defendant, also an adult child of the deceased – Whether the Plaintiff was left without adequate provision for his proper maintenance and advancement in life – Whether an order for provision should be made for his proper maintenance and advancement in life and, if so, in what amount – Provision to be made for the Plaintiff in lieu of the provision made for him in the deceased’s Will.
Heyward v Fisher (Court of Appeal (NSW), Kirby P, 26 April 1985, unrep)
Hughes v…
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.
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AGLC
North v Daniel [2021] NSWSC 828
Case
[2021] NSWSC 828
Decision Date
CaseChat Overview and Summary
In the case of North v Daniel, the plaintiff, an adult child of the deceased, contested the adequacy of the provision made for him in the deceased's last Will. The deceased had made some provision for the plaintiff but also left substantial assets to another adult child, the defendant. The plaintiff sought additional provision under Chapter 3 of the Succession Act, arguing that the existing provision was inadequate for his proper maintenance and advancement in life. The court was tasked with determining whether the plaintiff's claim should succeed and, if so, the appropriate amount of additional provision.
The primary legal issue before the court was whether the plaintiff was left without adequate provision for his proper maintenance and advancement in life, given the existing provision in the deceased's Will and the reasons provided by the deceased for the limited provision. The court also had to consider the competing claim of the other adult child, who had received significant assets in the Will. The court needed to balance the deceased's reasons for the provision made against the statutory requirements for making provision under the Succession Act.
The court found that the reasons provided by the deceased for the limited provision made to the plaintiff were not entirely accurate. Despite some provision being made for the plaintiff, the court concluded that he was left without adequate provision for his proper maintenance and advancement in life. The court considered the competing claim of the other adult child but ultimately determined that additional provision should be made for the plaintiff. The court ordered that the plaintiff should receive a specific amount in lieu of the provision made for him in the deceased's Will.
The final orders of the court provided that the plaintiff was to be made whole in terms of provision for his proper maintenance and advancement in life. The court granted the plaintiff an order for additional provision, specifying the amount to be paid. This order effectively supplemented the provision made in the deceased's Will to ensure the plaintiff was adequately provided for under the Succession Act.