1. Stands the matter over until 9:00 a.m. on 15 December 2020 to enable the parties to reach agreement on the form of orders, including the order for costs.
2. Directs, if agreement cannot be reached within 7 days of the delivery of reasons, that each party deliver to the Court, within 10 days thereafter, written submissions, in hard and soft copy, comprising no more than 5 pages in length, setting out the orders sought and the basis for the making of that order.
Catchwords:
SUCCESSION – Family provision order sought by Plaintiff widower of the deceased – Marriage of 48 years, although separation under one roof, 4 years before the deceased’s death – Estate comprising one half interest as tenants in common in matrimonial home of the deceased and Plaintiff, in which Plaintiff and deceased had lived for about 38 years – No provision for husband in the Will of the deceased – Provision only made for two adult children of the marriage – Antipathy between the children and the Plaintiff – Reasonable estate in value – Financial resources of the Plaintiff considered – Whether Plaintiff has been left without adequate provision for his proper maintenance and advancement in life – Obligation of the deceased towards surviving spouse – Nature of provision to be made – Whether absolute interest, life estate, Crisp order, or other form of provision should be made – Competing claim of each of the adult children of the deceased and the Plaintiff –
Provision to be made for Plaintiff by way of absolute interest subject to conditions – Alternative relief if conditions not met – Costs of proceedings significant – Unable to determine costs as offers said to have been made that may be relevant
[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
Sarant v Sarant [2020] NSWSC 1686
Case
[2020] NSWSC 1686
Decision Date
CaseChat Overview and Summary
The case of Sarant v Sarant involved a dispute regarding the deceased's estate and the entitlement of the plaintiff, the widower of the deceased, to a family provision order. The deceased, who was married to the plaintiff for 48 years, passed away leaving a will that did not provide for the plaintiff but only for the two adult children of the marriage. The couple had separated four years prior to the deceased's death, though they continued to live under the same roof. The estate included a half interest as tenants in common in their matrimonial home, where they had lived for approximately 38 years. There was considerable antipathy between the children and the plaintiff, which further complicated the proceedings.
The legal issues at hand centred on whether the plaintiff had been left without adequate provision for his proper maintenance and advancement in life, given his long marriage and cohabitation with the deceased. The court had to consider the deceased's obligation towards the surviving spouse, the nature of the provision to be made, and the competing claims of the plaintiff and the deceased's children. The court was tasked with determining the appropriate form of provision, whether it be an absolute interest, a life estate, a Crisp order, or some other form, and how to balance these against the claims of the children.
The court ruled in favour of the plaintiff, determining that he had indeed been left without adequate provision for his proper maintenance and advancement in life. The court found that the deceased owed an obligation towards the plaintiff, given their long marriage and shared life. Consequently, the court ordered that the plaintiff should receive a family provision by way of an absolute interest in the matrimonial home, subject to certain conditions. If these conditions were not met, the court specified alternative relief that would be provided. The proceedings incurred significant costs, which the court could not determine at that stage due to potential offers made that might be relevant in assessing the costs.