Poche v Poche

Case [2020] NSWSC 835


Supreme Court


New South Wales

  • Amendment notes
Medium Neutral Citation: Poche v Poche [2020] NSWSC 835
Hearing dates: 29, 30 and 31 July 2019. Last written submissions dated 12 August 2019.
Date of orders: 30 June 2020
Decision date: 30 June 2020
Jurisdiction:Equity
Before: Henry J
Decision:

See paragraph [353]

Catchwords:

SUCCESSION – Family provision – claim by adult son – whether adequate and proper provision made for plaintiff by modest provision in will – where plaintiff’s financial situation deteriorated after deceased made her will – where defendant, the other adult son, had a strong competing claim to deceased’s estate – extent of provision made by deceased to plaintiff and defendant during lifetime – where plaintiff took over the family business – where plaintiff and defendant provided with property – where defendant had legitimate expectations to bulk of estate comprising 50% interest in property – where plaintiff’s income significantly reduced and unable to service debt and expenses – where value of remaining cash assets in deceased’s estate not small – further provision ordered

COSTS – Family provision – excessive costs – where legal costs disproportionate and exceed claim for provision – where total legal costs far exceed the value of cash assets available for distribution – where probate and other claims made and abandoned prior to and at hearing – whether costs capping order should be made – family provision costs capped at $125,000 – other costs orders made

Legislation Cited:

Civil Procedure Act 2005 (NSW), ss 60, 98

Succession Act 2006 (NSW), ss 59, 60

Uniform Civil Procedure Rules 2005 (NSW), r 42.1, 42.19(2), 42.4

Cases Cited:

Askew v Askew [2015] NSWSC 192

Bates v Cooke [2015] NSWCA 278

Baychek v Baychek [2010] NSWSC 987

Blendell v Byrne [2019] NSWSC 583

Brown v Grosfeld [2011] NSWSC 1429

Chan v Chan [2016] NSWCA 222

Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392

Cringle v Cringle [2018] NSWSC 1558

Drivas v Jakopovic [2018] NSWSC 1803

Gorton v Parks (1989) 17 NSWLR 1

Grant v Roberts; Smith v Smith; Roberts v Smith; Curtis v Smith [2019] NSWSC 843

Hampson v Hampson [2010] NSWCA 359

Harris v Harris [2018] NSWSC 552

Lloyd-Williams v Mayfield (2005) 63 NSWLR 1; [2005] NSWCA 189

McCosker v McCosker (1957) 97 CLR 566; [1957] HCA 82

Meres v Meres [2017] NSWSC 285

Nudd v Mannix [2009] NSWCA 327

Perpetual Trustee Co Ltd v Baker [1999] NSWCA 244

Re the Estate of Hodges; Shorter v Hodges (1988) 14 NSWLR 698

Rogers v Rogers [2018] NSWSC 1982

Sgro v Thompson [2017] NSWCA 326

Shorten v Shorten (No 2) [2003] NSWCA 60

Singer v Berghouse (1993) 114 ALR 521; [1993] HCA 35

Slack v Rogan; Palffy v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522

Squire v Squire [2019] NSWCA 90

Steinmetz v Shannon (2019) 99 NSWLR 687; [2019] NSWCA 114

Steinmetz v Shannon [2019] NSWCA 114

Stone v Stone [2019] NSWSC 233

Vigolo v Bostin (2005) 221 CLR 191; [2005]…

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Poche v Poche [2020] NSWSC 835
Case
[2020] NSWSC 835
Decision Date

CaseChat Overview and Summary

In the case of Poche v Poche, the dispute arose between the plaintiff, an adult son, and the defendant, his brother, following the death of their mother. The plaintiff claimed that he had not been adequately provided for under the deceased's will. The case was heard in the Family Court of Australia.

The legal issues before the court included whether the deceased had made adequate and proper provision for the plaintiff, and if the plaintiff's financial situation and the competing claims of the defendant warranted a redistribution of the estate. The court had to consider the extent of provision made to both sons during the deceased's lifetime, the nature of the plaintiff's business and financial circumstances, and the value of the remaining cash assets in the estate.

The court found that the deceased had not made adequate provision for the plaintiff, who had taken over the family business but faced significant financial difficulties. The plaintiff's income had reduced, and he was unable to service his debts and expenses. While the defendant had a legitimate expectation of a substantial portion of the estate, the court determined that the value of the remaining cash assets in the estate was not insignificant. Consequently, the court ordered further provision for the plaintiff. In addition, the court addressed the issue of excessive legal costs, capping the family provision costs at $125,000 and making orders for other costs.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

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Ratio Decidendi

Legal Principle Established

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