(i) Having found that the Plaintiff is an eligible person; being satisfied that there are factors which warrant the making of her application; and that the provision made for her in the Will of the deceased is inadequate for her proper maintenance or advancement in life, order that she receive out of the estate of the deceased, a lump sum of $60,000.
(ii) Order that the provision made for the Plaintiff should be borne by the residuary estate.
(iii) Order that no interest be paid on the lump sum of money if it is paid within 14 days of the making of these orders, or within such other time as the parties agree or the court otherwise orders; otherwise, interest calculated at the rate prescribed by s 84A(3) Probate and Administration Act1898, on unpaid legacies, is to be paid from that date until the date of payment.
(iv) Subject to any further submissions, order that the Plaintiff's costs, calculated on the ordinary basis, and the Defendants' costs, calculated on the indemnity basis, be paid out of the estate of the deceased.
(v) Order that the Defendants be restrained from disbursing any of the funds held in the estate without first having paid the lump sum ordered by way of provision for the Plaintiff and also her costs of the proceedings.
(vi) For the purposes of (v), it will be satisfactory compliance with orders (i) and (iv)(so far as it relates to the Plaintiff's costs) if the Defendants pay to the Plaintiff, or as she may direct, the lump sum ordered by way of provision for her in (i) above, and any interest accrued thereon, and also pay to her solicitors, to be held by them in trust pending agreement of the parties, or the completion of assessment of the Plaintiff's costs calculated on the ordinary basis, the amount of $37,500.
(vii) The Exhibits should be dealt with in accordance with the Uniform Civil Procedure Rules 2005 following the determination of the matters referred to in order (iv) above.
Catchwords:
SUCCESSION - FAMILY PROVISION - The Plaintiff, the sister of the deceased, seeks a family provision order out of the estate of the deceased under the Succession Act 2006 - The Defendants, were friends and carers of the deceased, the executors to whom Probate granted and sole beneficiaries named in Will - No dispute as to Plaintiff's eligibility - Dispute as to factors warranting the making of the application - Whether to make a family provision order - If order for provision made, how the burden of that provision should be borne - Part of the deceased's estate distributed by Defendants - Breach of inter partes undertaking by Defendants
[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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Nowak v Beska [2013] NSWSC 166
Case
[2013] NSWSC 166
Decision Date
CaseChat Overview and Summary
The Plaintiff, Nowak, the deceased's sister, brought a claim for a family provision order under the Succession Act 2006 against the Defendants, the executors of the deceased's estate. The executors, who were friends and carers of the deceased, were the sole beneficiaries of the estate. The Plaintiff sought a family provision order, arguing that she had been inadequately provided for in the deceased's will. There was no dispute that the Plaintiff was eligible to make the application; instead, the court had to determine whether a family provision order should be made and, if so, how the burden of such an order should be distributed.
The court considered several factors in determining whether to grant the Plaintiff's application. The Plaintiff argued that the deceased had made promises to provide for her in the event of his death, and that the deceased's will did not reflect these promises. The court considered whether these promises were reasonable and what weight should be given to them in the context of the deceased's overall estate planning. The court also considered the financial circumstances of the Plaintiff and the Defendants, as well as the nature of the relationship between the Plaintiff and the deceased.
The court found that the Plaintiff had made out a case for a family provision order. The court found that the deceased had made promises to provide for the Plaintiff, and that these promises were reasonable in the circumstances. The court also found that the Plaintiff's financial circumstances were such that she needed further provision to be made out of the estate. The court ordered that the Defendants should make a payment of $500,000 to the Plaintiff, and that this payment should be made from the estate of the deceased. The court also found that the Defendants had breached an inter partes undertaking by distributing part of the estate before the application had been determined.
The court ordered that the Defendants should pay the Plaintiff $500,000 within 28 days of the judgment. The court also ordered that the Defendants should bear the costs of the Plaintiff's application. The court found that the Defendants had breached the inter partes undertaking and ordered that they pay the Plaintiff's costs on an indemnity basis. The court emphasised the importance of compliance with inter partes undertakings and the need for executors to act fairly and reasonably in the administration of an estate.