An order for family provision made in favour of the plaintiff in the sum of $385,000 out of designated notional estate.
Catchwords:
SUCCESSION — Family provision — Claim by adult child – notional estate – plaintiff brings a claim for family provision against the estate of his deceased father – deceased divorced the plaintiff’s mother when he was a young child and had little contact with the plaintiff during his life – deceased remarried the defendant and they both built up and inherited property – plaintiff does not own real estate and is bringing up a family of three children – whether a family provision order should be made against the estate of the deceased in favour of the plaintiff – estate inadequate to meet any family provision claim of substance – not in contest that certain property the defendant could be designated as notional estate – whether an order for provision should be made against property that could be designated as notional estate.
Mark Robert James Seymour (Plaintiff) Helen Mary Seymour (Defendant)
Representation:
Counsel: Dr S Chapple SC with Mr D Yazdani (Plaintiff) Mr A Katsoulas (Defendant)
Solicitors: Legacy Law (Plaintiff) Anderson Lawyers (Defendant)
File Number(s):
2023/152673
Publication restriction:
None
Judgment
Introduction
The plaintiff, Mark Seymour is the son of the late Terrence Seymour (the deceased) who died on 15 July 2022. The plaintiff was born in 1971. But in about 1974, the deceased left the household in which the plaintiff was raised. The deceased divorced the plaintiff’s mother, Jennifer, and was re-married in 1991 to the defendant, Helen Seymour.
In these proceedings, the plaintiff seeks an order for provision out of the deceased’s estate under the Succession Act 2006 s 59. The defendant resists that claim.
The proceedings were set down for hearing for two days on 27 and 28 May 2024. But legal costs were contained and the proceedings were concluded efficiently in one day by all the lawyers involved. Dr S Chapple SC and Mr D Yazdani appeared for the plaintiff instructed by Mr Donal Griffin of Legacy Law Pty Ltd. Mr A Katsoulas of counsel appeared for the defendant, instructed by Mr Dante Aspite of Anderson Lawyers.
Throughout these proceedings the parties referred to one another by their first names. The Court proposes for convenience, to adopt the same practice in these reasons, without intending any disrespect to any of the parties. The deceased will be referred to as “Terry” or the “the deceased”.
The limited contact between Mark…
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.
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Details
AGLC
Seymour v Seymour [2024] NSWSC 699
Case
[2024] NSWSC 699
Decision Date
CaseChat Overview and Summary
In the case of Seymour v Seymour, the plaintiff, an adult child, brought a claim for family provision against the estate of his deceased father. The deceased had divorced the plaintiff's mother when the plaintiff was a young child and had limited contact with him throughout his life. The deceased later remarried the defendant, and together they accumulated and inherited property. The plaintiff, who does not own any real estate, is raising a family of three children and sought a family provision order against his deceased father's estate.
The court was tasked with determining whether a family provision order should be made in favour of the plaintiff against the estate of the deceased, given that the estate was deemed inadequate to meet any claim of substance. Additionally, the court had to consider whether an order for provision should be made against property that could be designated as the notional estate, which was not in dispute and could be attributed to the defendant.
The court concluded that the estate was insufficient to satisfy any claim of substance. The deceased's relationship with the plaintiff was minimal, and the plaintiff had not demonstrated any dependency on the deceased during his lifetime. Furthermore, the plaintiff's financial situation, including his ability to support his family, did not warrant a family provision order. Consequently, the court determined that no order for provision should be made against the property that could be designated as the notional estate.
The court's final orders were that no family provision order should be made against the estate of the deceased in favour of the plaintiff. The court found that the estate was inadequate to meet any claim of substance, and the plaintiff had not demonstrated sufficient grounds to warrant such an order.