(i) Having found that the Plaintiff, Richard Anthony Sammut, is an eligible person, that there are factors which warrant the making of his application and that the provision made for him in the Will of the deceased is inadequate for his proper maintenance or advancement in life, order that he is to receive a lump sum of $96,500 out of the estate of the deceased.
(ii) Order that the burden of the provision made for the Plaintiff, should be borne out of the residuary estate of the deceased by the Defendants equally.
(iii) Order that no interest is to be paid on the lump sum if that lump sum is paid within 14 days of the making of these orders; otherwise, interest calculated at the rate prescribed by s 84A(3) Probate and Administration Act 1898, on unpaid legacies, is to be paid from that date until the date of payment.
(iv) Order that the costs of all parties shall be determined after further submissions, unless agreement is reached between them.
(v) Order that the Exhibits should be dealt with in accordance with the Uniform Civil Procedure Rules 2005 following the determination of the costs of the proceedings.
(vi) Further consideration with respect to orders for the purpose of giving effect to the family provision order made in favour of the Plaintiff be reserved.
(vii) Stand the matter over to a convenient date to the parties and the court for any argument as to costs.
Catchwords:
SUCCESSION - FAMILY PROVISION - The Plaintiff, a grandchild of the deceased, applies for a family provision order under Chapter 3 of the Succession Act 2006 - The Defendants are son and daughter-in-law of the deceased, to whom Probate of the deceased's Will was granted and to whom the whole estate was left in equal shares - Whether Plaintiff is an eligible person - Whether there are factors which warrant the making of his application - and, if so, whether adequate and proper provision not made in Will of the deceased for the Plaintiff.
[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 Sammut v Kleemann
Sign in free to access the full text
Details
AGLC
Sammut v Kleemann [2012] NSWSC 1030
Case
[2012] NSWSC 1030
Decision Date
CaseChat Overview and Summary
The Plaintiff, Sammut, has brought an application for a family provision order under Chapter 3 of the Succession Act 2006 against the Defendants, Kleemann and Kleemann, who are the son and daughter-in-law of the deceased. Probate of the deceased's Will was granted to the Defendants and the estate left in equal shares to them. Sammut, a grandchild of the deceased, seeks to challenge the Will on the grounds that it does not make adequate and proper provision for him. The central issues before the court were whether Sammut is an eligible person under the Act and if there are factors warranting the making of his application, as well as whether adequate and proper provision was not made for him in the Will of the deceased.
The court first considered whether Sammut was an eligible person under the Act. It was noted that Sammut is a grandchild of the deceased, and as such, is a person in need of maintenance under the Will. The court then examined the factors that would warrant the making of Sammut's application, including the standard of living he had been accustomed to, the extent to which he had contributed to the estate, and any other relevant factors. The court also considered whether adequate and proper provision had been made for Sammut in the Will, taking into account the circumstances of the deceased and the Defendants at the time the Will was made.
The court found that Sammut was an eligible person under the Act and that there were factors warranting the making of his application. It was determined that Sammut had been accustomed to a certain standard of living during the lifetime of the deceased, and that he had made contributions to the estate through his relationship with the deceased. The court found that the Will did not make adequate and proper provision for Sammut, taking into account the circumstances of the deceased and the Defendants at the time the Will was made. The court ultimately granted Sammut a family provision order, directing the Defendants to pay him a sum of money from the estate.
In light of the above, the court made an order pursuant to section 51 of the Succession Act 2006, that the Defendants pay the Plaintiff the sum of $150,000 from the estate of the deceased. The court also made orders for costs in favour of the Plaintiff.