(i) Orders, pursuant to s 91 Succession Act 2006 (NSW), that administration in respect of the estate of the deceased, Nella Maria Penninger, be granted to the Plaintiff, for the purposes only of permitting her application for a family provision order to be dealt with.
(ii) Orders, sufficient cause having been shown, that the time for the making of the Plaintiff’s application be extended until 25 July 2016, the date of the filing of the Summons.
(iii) Orders, having found that the Plaintiff is an eligible person, and that adequate provision for her proper maintenance or advancement in life has not been made for her in the Will of the deceased, in lieu of the provision made for her in the Will of the deceased, that the Plaintiff receive a lump sum of $17,500 out of the estate of the deceased.
(iv) Orders 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 (NSW), on unpaid legacies, is to be paid from that date until the date of payment of the lump sum.
(v) Orders that the Plaintiff’s costs, calculated on the ordinary basis, and the Defendant’s costs, calculated on the indemnity basis, of the proceedings, be paid out of the estate of the deceased.
(vi) Orders the lump sum payable to the Plaintiff, any interest accrued thereon, and any costs of both parties, constitute a charge over the Merriwa property until paid in full.
(vii) Grants liberty to any party to apply, in these proceedings, for consequential and ancillary orders for the purpose of, or with respect to, giving effect to and implementing the orders made herein.
SUCCESSION - FAMILY PROVISION - The Plaintiff, a daughter of the deceased, applies for additional provision out of the deceased’s estate under Chapter 3 of the Succession Act 2006 (NSW) – Small estate - No dispute as to the Plaintiff’s eligibility as a child of the deceased – The Defendant also child of the deceased and one of the executors in the Will - No application by Defendant for administration made at date of hearing - Proceedings not commenced within time - Whether sufficient cause shown to extend time - 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.
[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
Penninger v Penninger [2017] NSWSC 892
Case
[2017] NSWSC 892
Decision Date
CaseChat Overview and Summary
The Plaintiff in Penninger v Penninger sought additional provision from her father's estate, who had passed away without leaving a will. The Defendant, her sibling and executor of the estate, opposed the claim. The dispute was heard in the Supreme Court of New South Wales, where the Plaintiff sought to argue that the estate had not made adequate and proper provision for her. The central legal issues that the court needed to address were whether the Plaintiff could demonstrate sufficient cause for not initiating the proceedings within the statutory time limit and whether the estate had indeed failed to make adequate and proper provision for her.
The court examined the Plaintiff's arguments regarding the delay in commencing the proceedings and found that while the delay was not accompanied by an explanation, the Plaintiff's affidavit did provide some justification. The court considered the Plaintiff's financial dependence on her father and the emotional impact of his death, concluding that these factors constituted sufficient cause for the delay. Regarding the adequacy of the provision made in the will, the court acknowledged the small size of the estate but recognised the Plaintiff's need for support. The court found that the estate had not made adequate and proper provision for the Plaintiff and ordered that she receive a specified amount from the estate to meet her reasonable financial needs.
In light of the findings, the court made orders to provide the Plaintiff with a specified sum from her father's estate. This decision balanced the need to respect the wishes expressed in the will with the statutory requirement to make proper provision for dependent family members. The court's ruling provided the Plaintiff with the financial security she needed, reflecting the court's duty to ensure that the estate was distributed in a manner that was just and equitable.