Ovens v Ovens

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.