Directs, in the event that the issue of costs is not resolved between the parties, the matter is to be re-listed, for the purpose of hearing argument on whether the issue of the costs of the proceedings should be determined other than in accordance with the usual order for costs
Catchwords:
SUCCESSION – Family provision – Claim by adult child for provision from the deceased’s estate under Succession Act 2006 (NSW), Ch 3 – One of the Defendants is also an adult child of the deceased whilst the other is an adult grandchild of the deceased – Will of the deceased made some provision (one-quarter of the estate) for the Plaintiff – Estate of reasonable value – Provision also had been made for Plaintiff during lifetime of the deceased – Whether adequate and proper provision not made in Will of the deceased for the Plaintiff and if so the nature and quantum of the provision to be made – Summons dismissed
[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
Page v Hull-Moody [2020] NSWSC 411
Case
[2020] NSWSC 411
Decision Date
CaseChat Overview and Summary
In the matter of Page v Hull-Moody, the Plaintiff, an adult child of the deceased, sought an order for provision from the deceased's estate under the Succession Act 2006 (NSW). The Defendants included another adult child and an adult grandchild of the deceased. The Plaintiff argued that the deceased had failed to make adequate provision for her in the Will, which allocated one-quarter of the estate to her. The Plaintiff further contended that she had received some provision during the deceased's lifetime. The Defendants argued that the deceased had made proper and adequate provision for the Plaintiff, both in the Will and during the deceased's lifetime, and thus the Plaintiff's claim should be dismissed.
The court was required to determine whether the deceased had made adequate and proper provision for the Plaintiff in the Will and, if not, what the nature and quantum of any provision should be. The court considered the deceased's intention as expressed in the Will, the financial circumstances of the Plaintiff, and the contributions made by the Plaintiff to the deceased's estate during the deceased's lifetime. The court also considered the Plaintiff's age, health, and any other relevant factors that might influence the appropriate provision.
The court found that the deceased had made adequate and proper provision for the Plaintiff, both in the Will and during the deceased's lifetime. The court held that the deceased's intention was to provide for the Plaintiff and that the Plaintiff had received a significant share of the estate. The court also found that the Plaintiff's contributions to the deceased's estate during the deceased's lifetime were acknowledged and considered by the deceased in making the provisions in the Will. The court therefore dismissed the Plaintiff's claim and made no order for further provision.
The court dismissed the summons brought by the Plaintiff for provision from the deceased's estate. The court held that the deceased had made adequate and proper provision for the Plaintiff, both in the Will and during the deceased's lifetime. The court found that the deceased's intention was to provide for the Plaintiff and that the Plaintiff had received a significant share of the estate. The court also found that the Plaintiff's contributions to the deceased's estate during the deceased's lifetime were acknowledged and considered by the deceased in making the provisions in the Will.