Orders that the Plaintiff pay the Defendants’ costs, calculated on the indemnity basis, from 28 February 2018, and their costs calculated on the ordinary basis prior to that date.
Orders that the exhibits be returned.
Catchwords:
SUCCESSION – FAMILY PROVISION – The Plaintiff, an adult child of the deceased, makes a claim for a family provision order – No dispute as to the Plaintiff’s eligibility as a child of the deceased – First and second Defendants are also adult children of the deceased and the executors and principal beneficiaries named in the Will –– Small estate in value – No provision made for Plaintiff in the deceased’s Will – Whether family provision order should be made, and if so, the nature and quantum of the provision to be made – No order for provision made
Deceased’s estate reduced partly because of severance of joint tenancy in which the Plaintiff is said to have played a part –– As a result, provision of the one half interest in that property received by Plaintiff from her father’s estate – Relevance of benefit received out of the father’s estate
COSTS – Offer of Compromise served about 2.5 months prior to the hearing – Defendants obtained order no less favourable than offer made – Whether Court’s discretion should be exercised to depart from UCPR – Overall justice of the case does not warrant exercise of the Court’s discretion
[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
Philpott v Pantos [2018] NSWSC 852
Case
[2018] NSWSC 852
Decision Date
CaseChat Overview and Summary
In the case of Philpott v Pantos, the plaintiff, an adult child of the deceased, sought a family provision order against the estate of her father. The defendants, who are also adult children of the deceased and the executors and principal beneficiaries under the will, opposed the claim. The estate was of modest value, and the plaintiff was not provided for in the deceased’s will. The central issue for the court was whether a family provision order should be made and, if so, the nature and quantum of the provision.
The court considered the plaintiff's claim in the context of the modest estate and the absence of any provision for her in the will. The plaintiff argued that she had contributed to the estate by assisting in severing joint tenancy, which resulted in her receiving half of one property from her father’s estate. The court had to weigh the relevance of this benefit against her entitlement to a family provision order. Furthermore, the court was required to determine whether to exercise its discretion under the Uniform Civil Procedure Rules to depart from the offer of compromise made by the defendants.
The court found that the overall justice of the case did not warrant departing from the offer of compromise, and as such, no family provision order was made. The court considered the small value of the estate, the benefit received by the plaintiff, and the terms of the offer of compromise in reaching this decision. Consequently, the defendants obtained an order no less favourable than the offer made, and the plaintiff’s claim was dismissed.