(i) Having found that the Plaintiff is an eligible person, 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 $225,000.
(ii) Order that no interest is to be paid on the lump sum, if that lump sum is paid within 28 days of the making of these orders; otherwise, interest calculated at the rate prescribed by s 84A(3) Probate and Administration Act 1898, on unpaid legacies, is to be paid from that date until the date of payment.
(iii) Order that the costs of the Plaintiff, calculated on the ordinary basis, and the costs of the Defendant, calculated on the indemnity basis, should be paid out of the estate of the deceased.
(iv) Order that the Exhibits should be dealt with in accordance with the Uniform Civil Procedure Rules 2005 following the determination of the costs of the proceedings.
Catchwords:
SUCCESSION - FAMILY PROVISION - The Plaintiff, a daughter of the deceased, applies for a family provision order under Chapter 3 of the Succession Act 2006 - The Defendant is the son of the deceased, to whom Probate of the deceased's Will was granted, and the sole beneficiary named in the Will of the deceased - No dispute that adequate and proper provision was not made in the Will of the deceased for the Plaintiff - Sole issue is the nature and quantum of the provision to be made for the Plaintiff out of the deceased's estate.
[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
Penberthy v Manasseh [2013] NSWSC 317
Case
[2013] NSWSC 317
Decision Date
CaseChat Overview and Summary
The case of Penberthy v Manasseh involved the plaintiff, a daughter of the deceased, who sought a family provision order under Chapter 3 of the Succession Act 2006. The defendant, the son of the deceased, was the sole beneficiary under the deceased's will and had been granted probate. The plaintiff's application for a family provision order arose from the absence of any provision made for her in the deceased's will, leaving the court to determine the nature and amount of the provision that should be made for her from the estate.
The legal issue before the court was the quantification of the provision that should be made for the plaintiff out of the deceased's estate. The court had to consider the various factors outlined in section 47 of the Succession Act 2006, including the plaintiff's financial resources and the extent to which she was financially dependent on the deceased. The court also had to weigh the moral claim of the plaintiff against the dispositions made in the deceased's will.
In delivering its judgment, the court found that the plaintiff had made out a valid application for a family provision order. It was noted that the plaintiff had contributed to the deceased's wellbeing and that her financial circumstances were not such as to render her claim for provision from the estate unreasonable. The court also considered the deceased's intention in making the will, finding that it was not his intention to completely disinherit the plaintiff. As a result, the court ordered that the plaintiff be provided with a specified sum from the deceased's estate, which was determined to be a fair and reasonable provision having regard to all relevant circumstances.
The court's final order was that the defendant, as the executor of the deceased's estate, should pay the specified sum to the plaintiff within 28 days of the judgment. The court emphasised that the order was not a reflection of the plaintiff's entitlement to the entire estate but rather a determination of the provision that should be made for her under the circumstances. The court also noted that the order was not intended to undermine the validity of the deceased's will but rather to ensure that the plaintiff received a fair share of the estate in accordance with the law.