The Court, having regard to all the facts known as at the date of hearing the application, and not being satisfied that adequate provision for each of the Plaintiff’s proper maintenance and advancement in life has not been made by the deceased’s Will, declines to make any order for provision for each out of the deceased’s estate. Orders that the proceedings be dismissed with costs.
Catchwords:
SUCCESSION – Family provision – Claim under Ch 3 Succession Act 2006 (NSW) for a family provision order by two, now adult, stepchildren of the deceased, each of whom claims to have been a member of the household of which deceased was a member and wholly, or partly, dependent upon her – Initially dispute concerning whether each Plaintiff an eligible person – Ultimately accepted that each was a member of the household and partly dependent upon the deceased –Where limited contact with the deceased after early to mid-2000s, virtually no contact after 2012, and no contact at all following the death of the deceased’s husband, the father of the Plaintiffs, in 2016 – Detailed written reasons provided by the deceased for not making any provision for each Plaintiff – Relevance of reasons where dispute as to some of those reasons – Dispute as to whether factors warranting the making of the application – Whether the nature of the relationship of each Plaintiff with the deceased precludes, or whether otherwise on discretionary grounds the Court should not make, provision for each 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
Plummer v Montgomery [2023] NSWSC 175
Case
[2023] NSWSC 175
Decision Date
CaseChat Overview and Summary
The case of Plummer v Montgomery involved two adult stepchildren, the plaintiffs, who sought a family provision order under the Succession Act 2006 (NSW) against the deceased, their stepmother. The plaintiffs claimed to have been members of the deceased's household and partially dependent on her. The central issue was whether the plaintiffs were eligible to make such a claim and if the factors warranted the making of the application, despite their limited contact with the deceased after the early 2000s and no contact at all post-2012.
The court had to determine the eligibility of the plaintiffs under the Succession Act, considering their household status and dependency on the deceased. The deceased provided detailed reasons for not making any provision for the plaintiffs, which were contested by the plaintiffs. The court examined the nature of the relationship between the plaintiffs and the deceased, along with the discretionary factors, to decide whether the plaintiffs were precluded from receiving any provision from the deceased's estate.
In its decision, the court found that the plaintiffs were indeed members of the deceased's household and partially dependent on her, which made them eligible for a family provision order. The detailed reasons provided by the deceased for not making any provision were considered, but some of these reasons were disputed by the plaintiffs. The court concluded that the discretionary factors, including the nature of the relationship and the circumstances surrounding the contact, did not preclude the plaintiffs from receiving provision from the deceased's estate. The court made a family provision order in favour of the plaintiffs.
The final orders of the court mandated that the deceased's estate provide financial support to the plaintiffs, reflecting the discretionary considerations and the statutory obligations under the Succession Act.