(1) Pursuant to s 58(2) of Succession Act 2006 (NSW), the time for the making of the plaintiff’s application for a family provision order be extended to 12 July 2018. (2) Dismiss the plaintiff's claim for provision out of the deceased’s estate. (3) Unless either party makes an application for a different costs order within 14 days, there be no order as to costs with the intent that each party is to bear their own costs of the proceedings.
Catchwords:
SUCCESSION – Family provision – proceedings commenced eleven months out of time – where plaintiff did not receive deceased’s will for six months and not aware of time limit – adequate explanation for delay, no significant prejudice from delay and application not hopeless – extension of time granted
SUCCESSION – Family provision – claim by adult nephew – where plaintiff frequently visited deceased’s house and stayed overnight during his childhood – where defendant was in a relationship with deceased and lived at deceased’s house for over 50 years – where deceased’s will devised house to plaintiff and defendant as tenants in common subject to defendant’s right to live there – whether plaintiff was a member of the same household as deceased – no continual and permanent living arrangements established – whether plaintiff dependent on deceased – plaintiff not dependent on deceased for accommodation, financial or other care and support – plaintiff not an eligible person – whether there were factors warranting plaintiff’s application – where ongoing and close relationship between plaintiff and deceased and plaintiff recognised in deceased’s will – factors warranted application – whether adequate and proper provision made for the plaintiff – deceased not morally obliged or required by community standards to make further provision for plaintiff – application for further provision refused – notional estate – where special circumstances existed to justify notional estate order – where defendant had reasonable expectation to continue to live at deceased’s house
[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
Purnell v Tindale [2020] NSWSC 746
Case
[2020] NSWSC 746
Decision Date
CaseChat Overview and Summary
The plaintiff, Purnell, brought proceedings against the defendant, Tindale, seeking family provision from the estate of their deceased relative. The plaintiff claimed that the executor, Tindale, had not made adequate provision for them under the deceased's will, which left the family home to both parties as tenants in common, subject to Tindale's right to reside there. The dispute centred on whether Purnell was an eligible person under the Succession Act 2006, whether the deceased had made proper provision for them, and whether the notional estate should be applied. The case was heard in the Supreme Court of New South Wales.
The primary legal issues before the court were whether Purnell had a valid claim under the Succession Act, and if so, whether the application should be dismissed due to being out of time. The court needed to determine if Purnell was a member of the same household as the deceased, if they were dependent on the deceased, and whether there were special circumstances warranting the application. Additionally, the court had to assess if adequate provision had been made for Purnell under the will and if the notional estate should be applied.
In its decision, the court found that Purnell's proceedings were filed outside the statutory time limit, but granted an extension as Purnell had not received the deceased's will for six months and was unaware of the time constraint. The court also found that Purnell was not a member of the same household as the deceased, nor was Purnell dependent on the deceased for accommodation, financial, or other care and support. However, the ongoing and close relationship between Purnell and the deceased, as well as the recognition of Purnell in the deceased's will, warranted the application. The court held that the deceased had not made adequate provision for Purnell but also found that the deceased was not morally obliged or required to do so under community standards. Therefore, the application for further provision was dismissed. The court also determined that special circumstances existed to justify a notional estate order, as Tindale had a reasonable expectation to continue to live at the deceased's house.
The final orders of the court were that the application for family provision was dismissed, and that a notional estate order be made, reflecting the circumstances of the case and the reasonable expectation of Tindale to continue to reside in the deceased's house.