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Re Estate Grant, deceased

Re Estate Grant, deceased

Case [2018] NSWSC 1031 5 July 2018

Wills made in contemplation of marriage

Intestacy

Family provision order

Succession Law

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Re Estate Grant, deceased [2018] NSWSC 1031
Hearing dates: 3 and 4 April 2018
Date of orders: 16 July 2018
Decision date: 05 July 2018
Jurisdiction: Equity
Before: Lindsay J
Decision:
(1) A Will made by the deceased shortly after dissolution of his first marriage was not “made in contemplation of” his second marriage within the meaning of the Succession Act 2006 NSW, section 12(3), with the consequence that it was revoked upon his re-marriage, and he died intestate.
(2) On terms as to the time within which an election must be made and the price to be paid, the deceased’s widow granted, pursuant to section 117(2) of the Succession Act 2006, an extension of time within which to make an election to acquire property from the deceased’s estate.
(3) A stepson of the deceased, treated by the deceased as a son, granted family provision relief, under Chapter 3 of the Succession Act, in the form of a legacy of $750,000.
Catchwords:
SUCCESSION – Wills, probate and administration – Wills made in contemplation of marriage – Whether deceased’s will revoked by second marriage – No express terms referring to marriage between the deceased and his widow – Where deceased expressed a desire to exclude his first wife and an estranged stepchild of his first marriage – Whether the deceased, at the time of making his will, had in mind again taking on a legally recognised status of marriage – No contemplation of second marriage – Deceased’s estate to be administered as intestate

SUCCESSION – Wills, probate and administration – Intestacy – Spousal right of election to estate property – Whether an extension of time should be granted – Whether sufficient cause – Whether appreciation in the value of estate property prejudiced other beneficiaries if election made – Extension granted on terms
SUCCESSION – Family provision and administration – Failure by testator to make sufficient provision for the applicant – Stepson raised by the deceased as his own child – No contest as to entitlement to provision – Designation of notional estate despite ample actual estate – Whether superannuation entitlement should be designated as notional estate to satisfy family provision relief – Special circumstances required – Where designation would facilitate administration of the deceased’s estate – Notional estate designated – Family provision order made.
Legislation Cited: Civil Procedure Act 2005 NSW
Conveyancing (Amendment) Act 1930 NSW, section 43(a)
Family Provision Act, 1982 NSW
Interpretation Act 1987
Interpretation Act 1987 NSW
Law of Property Act 1925 (15 George V, chapter 20), section 177
Marriage Act 1961 Cth
Succession Act 2006 NSW
Wills Act 1837 (Eng) (1 Victoria chapter 26), section 18
Cases Cited: Andrew v Andrew (2012) 81 NSW LR 656
Banks v Goodfellow (1870) LR 5 QB 549
Berry v Bell [2012] WASC 197
Bosch v Perpetual Trustee Co Ltd [1938] AC 463
Churton v Christian (1988) 13 NSWLR 241
Commonwealth v Australian Capital Territory (Same Sex Marriage Case) (2013) 250…

Grounds of appeal

[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.

Continue reading Re Estate Grant, deceased

Details

AGLC: Re Estate Grant, deceased [2018] NSWSC 1031
Case: [2018] NSWSC 1031
Decision Date: 05 July 2018

CaseChat Overview and Summary

The case involves the estate of a deceased individual, Grant, and the distribution of his assets according to his will. The primary issue is whether the deceased's will was revoked by his second marriage, as there were no express terms in the will referring to this marriage. Additionally, the court had to determine whether an extension of time should be granted for a spousal election to be made, considering the potential appreciation in the value of the estate property and its effect on other beneficiaries. Finally, the court considered whether family provision relief could be granted to the deceased's stepson, and if superannuation should be designated as part of the notional estate.

The court found that the deceased's will was not revoked by his second marriage as there was no contemplation of this marriage when the will was made. The deceased had clearly expressed a desire to exclude his first wife and an estranged stepchild, and thus the court held that his estate should be administered as intestate. Regarding the spousal election, the court granted an extension of time on specific terms, considering the appreciation in the value of the estate property and its potential impact on other beneficiaries. The court determined that granting an extension would not prejudice the other beneficiaries and that sufficient cause was demonstrated.

In relation to family provision, the court acknowledged that the deceased had raised his stepson as his own child and there was no contest as to the entitlement to provision. Despite the ample actual estate, the court designated a notional estate, including the deceased's superannuation, to facilitate the administration of the estate. The court found special circumstances existed, justifying the designation of the notional estate. Consequently, a family provision order was made in favour of the stepson.

The court's final orders included the administration of the deceased's estate as intestate, the granting of an extension of time for the spousal election on specific terms, and the designation of the notional estate, including superannuation, to satisfy family provision relief for the stepson.

Orders