SUCCESSION — family provision — jurisdiction —deceased’s spouse makes family provision applications in New South Wales and Australian Capital Territory — whether deceased domiciled in New South Wales or Australian Capital Territory at date of death — consideration of principles governing domicile under private international law — deceased dies with moderately large actual estate but potentially substantial notional estate held by discretionary trust and corporate entities — availability of notional estate regime under Succession Act 2006 (NSW), Pt 3.3 where deceased found to have been domiciled outside New South Wales at date of death
SUCCESSION — family provision — claim by spouse for provision from the deceased’s estate or notional estate under Succession Act 2006 (NSW), Ch 3 — alternative claim by partner for provision from the deceased’s estate under Family Provision Act 1969 (ACT), s 8 — plaintiff fourth wife of deceased left with no provision under deceased’s will — deceased leaves statutory declaration expressing reasons for excluding plaintiff — whether adequate and proper provision made for the plaintiff and, if not, the nature and quantum of the provision to be made — plaintiff entitled to entirety of deceased’s actual estate subject to payment of any costs orders
SUCCESSION — administration of estates — devastavit — consideration of principles — whether mere applicant for family provision has standing to bring devastavit claim
SUCCESSION — family provision — claims by alleged members of household and dependants of the deceased for provision from the deceased’s estate or notional estate under Succession Act 2006 (NSW), Ch 3 — applications by two children of person with whom deceased had a domestic relationship — applications fail because of finding that deceased had domicile outside New South Wales — whether plaintiffs otherwise eligible persons under Succession Act 2006 (NSW), s 57(1)(e) — whether plaintiffs otherwise establish factors warranting applications
FAMILY LAW — claim by domestic partner of deceased to vary or set aside order under Domestic Relationships Act 1994 (ACT), s 28 — whether settlement agreement and consequential court orders affected by miscarriage of justice because of fraud or suppression of evidence or any other circumstance
Succession Act 2006 (NSW), Ch 3, Pt 3.3, Pt 3.3 Div 3, ss 3, 57,…
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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Details
AGLC
O'Donnell v O'Donnell [2022] NSWSC 1742
Case
[2022] NSWSC 1742
Decision Date
CaseChat Overview and Summary
The case of O'Donnell v O'Donnell involved the deceased's spouse, who had made family provision applications in both New South Wales and the Australian Capital Territory. The central issue was whether the deceased was domiciled in New South Wales or the Australian Capital Territory at the time of death. This determination was crucial because it would affect the jurisdiction of the court and the availability of the notional estate regime under the Succession Act 2006 (NSW), Pt 3.3. The deceased left a moderately large actual estate but potentially had a substantial notional estate held by discretionary trusts and corporate entities.
The court had to decide whether the spouse's application was adequately supported and if the deceased had made adequate and proper provision for the spouse. The spouse argued that she was entitled to the entirety of the deceased's actual estate, subject to any costs orders. Additionally, two children of a person with whom the deceased had a domestic relationship sought provision from the deceased's estate or notional estate. Their applications failed due to the finding that the deceased had domicile outside New South Wales. The court also considered whether the domestic partner of the deceased had standing to bring a devastavit claim.
In its reasoning, the court carefully examined the principles of domicile under private international law to determine the deceased's domicile. It found that the deceased was domiciled outside New South Wales, impacting the jurisdiction and application of the notional estate regime. The court determined that the spouse was entitled to the entirety of the deceased's actual estate, subject to any costs orders. The claims by the domestic partner and the children of the person with whom the deceased had a domestic relationship were dismissed due to the deceased's domicile outside New South Wales. The court also considered the principles of devastavit and found that the mere applicant for family provision did not have standing to bring a devastavit claim.
The final orders of the court were that the spouse was entitled to the entirety of the deceased's actual estate, subject to any costs orders. The claims by the domestic partner and the children of the person with whom the deceased had a domestic relationship were dismissed. The court also found that the settlement agreement and consequential court orders were not affected by any circumstances warranting variation or setting aside under the Domestic Relationships Act 1994 (ACT), s 28.