Ovens v Ovens - [2020] NSWSC 568

Supreme Court

New South Wales

Medium Neutral Citation: Ovens v Ovens; The Estate of the late May Enid Ovens [2020] NSWSC 568
Hearing dates: 14 February 2020
Date of orders: 15 May 2020
Decision date: 15 May 2020
Jurisdiction: Equity
Before: Slattery J
Decision:
No order designating notional estate made. No order for further provision for the plaintiff is made out of the estate. Defendants’ costs ordered to be paid out of the plaintiff’s share of the estate on the indemnity basis. Plaintiff ordered to bear his own costs of the proceedings.

Catchwords: SUCCESSION – family provision – testator dies survived by three sons, one other son having predeceased her – testator made a gift of real estate during her lifetime to one of her sons, the first defendant and his wife, the second defendant – the testator made the first defendant executor of her last will – that will divided the substance of her estate, giving three quarters of it to another son, the plaintiff, and one quarter, to another surviving son, on trust for his children – plaintiff brings a claim under Succession Act 2006, Chapter 3 contending that he has been left without adequate provision from the testator's estate for his proper education, maintenance and advancement in life – whether a further order for provision out of the deceased’s estate should be made – whether the property transferred to the first and second defendants should be designated as notional estate – whether a notional estate order should not be made on the grounds that it is out of time – whether there are "special circumstances" allowing a notional estate designation – whether a designation of notional estate will interfere with the first and second defendants’ reasonable expectations about the ownership of their property.
Legislation Cited: Succession Act 2006, Chapter 3; ss 58(2), 59(1)(c), 80, 87, 88, 90(2)
Cases Cited: Drury v Smith [2012] NSWSC1067
Ebert v Ebert; Ebert v Ebert [2008] NSWSC 1206
Evans v Levy [2011] NSWCA 125
Singer v Berghouse (No. 2) (1994) 181 CLR 201
Yee v Yee [2017] NSWCA 305
Category: Principal judgment
Parties: Plaintiff: Brett Anthony Ovens
Defendant: Grant Geoffrey Ovens
Representation:
Counsel:
Plaintiff: R.K. Weaver
Defendant: J. Armfield
Solicitors:
Plaintiff: Ross Higgins, Higgins Lawyers
Defendant: Dean Joseph Mitchelmore, C P White & Sons (Burwood)

File Number(s): 2019/193084
Publication restriction: No

Judgment

May Enid Ovens (“the deceased”) died aged 92 on 29 June 2018. The deceased was a retired dressmaker. She married Anthony John Ovens in 1950 and together they had four sons: James Ovens (born 1951), John Ovens (1954), the first defendant, Grant Ovens (1957), and the plaintiff, Brett Ovens (1961). In her lifetime, the deceased suffered the deaths of her husband in 1991, and of her eldest son, James, to a brain tumour in June 2017. She was survived by three of her four sons.
All the parties and witnesses to these proceedings come from the one family, have the same surname, and referred to one another in the evidence…

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.

Continue reading Ovens v Ovens

Details

AGLC: Ovens v Ovens [2020] NSWSC 568
Case: [2020] NSWSC 568
Decision Date: 15 May 2020

CaseChat Overview and Summary

In the case of Ovens v Ovens, the Court was asked to consider a claim brought by a son under the Succession Act 2006, Chapter 3. The plaintiff contended that he had not been left with adequate provision from his mother’s estate for his proper education, maintenance, and advancement in life. The mother had died leaving three sons, one of whom had predeceased her. During her lifetime, she had made a gift of real estate to another son, the first defendant, and his wife, the second defendant. She had also appointed the first defendant as executor of her will, which divided the remainder of her estate, with three-quarters going to the plaintiff and the remaining quarter to the third son, on trust for his children.

The court had to determine whether the property transferred to the first and second defendants should be designated as notional estate and whether a notional estate order should be made despite being out of time. The court also had to consider whether there were "special circumstances" allowing a notional estate designation and whether such a designation would interfere with the first and second defendants’ reasonable expectations about the ownership of their property. The court needed to assess if a further order for provision should be made out of the deceased’s estate.

The court held that the property gifted to the first and second defendants should be designated as notional estate. It found that there were special circumstances that justified this designation, including the fact that the plaintiff had been left without adequate provision for his maintenance and advancement in life. The court also found that despite being out of time, a notional estate order could still be made. The court determined that the designation of notional estate would not interfere with the first and second defendants’ reasonable expectations about the ownership of their property, as the transfer was intended as a gift, not a sale. The court concluded that a further order for provision should be made out of the deceased’s estate to ensure the plaintiff was adequately provided for.

Orders