(i) Orders that the matter be adjourned to a date mutually convenient to the Court and the parties, to enable the parties to agree upon the final form of the proposed orders, including any orders as to costs.
(ii) Direct the parties to bring in Short Minutes of Order to reflect the reasons and the proposed orders.
(iii) Orders that if agreement is reached, Short Minutes of Order may be forwarded to the Court, for consideration, in Chambers, so that the orders proposed may be made, and entered, and the adjourned date be vacated.
Catchwords:
SUCCESSION - FAMILY PROVISION - NOTIONAL ESTATE – The Plaintiff, a daughter of the deceased, seeks a family provision order out of the estate or notional estate of the deceased under the Succession Act 2006 – No grant of administration – No provision made for the Plaintiff in the Will – Very little actual estate - The Defendant is the widow of the deceased and the holder of all property that may be designated as notional estate - Whether provision should be made for the Plaintiff and, if so, the nature of the provision to be made - Whether property of the Defendant should be designated as notional estate
[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
Soens v Rathborne [2018] NSWSC 302
Case
[2018] NSWSC 302
Decision Date
CaseChat Overview and Summary
The case of Soens v Rathborne involves a daughter, the plaintiff, seeking a family provision order from the estate or notional estate of her deceased father under the Succession Act 2006. The father had passed away leaving behind a will in which no provision was made for the plaintiff. The estate comprised very little actual property, and the defendant, the deceased's widow, held all property that may be considered part of the notional estate. The plaintiff argued that she was not adequately provided for and sought a family provision order to rectify this. The court was tasked with determining whether provision should be made for the plaintiff and, if so, what the nature of that provision should be. Additionally, the court had to decide whether the property held by the defendant should be designated as the notional estate.
The legal issues before the court were twofold. Firstly, whether the plaintiff was entitled to a family provision order under the Succession Act 2006, given that no provision was made for her in the will and the actual estate was negligible. Secondly, the court needed to determine the scope of the notional estate and whether the property held by the defendant should be included within it. The court had to balance the statutory presumption that the will represents the deceased's final wishes with the equitable principle that family members should be provided for, especially in cases where the deceased had not adequately accounted for their dependants in their will.
The court found in favour of the plaintiff, granting her a family provision order. It held that the notional estate included the property held by the defendant, and that the plaintiff was entitled to a provision out of this estate. The court reasoned that the absence of a grant of administration and the minimal actual estate meant that the notional estate was the appropriate source for the order. The court considered the plaintiff's needs and the overall circumstances of the case, concluding that the defendant's property should be designated as the notional estate to satisfy the plaintiff's claim. The final orders included a determination that the defendant's property was the notional estate and a direction that an appropriate provision be made to the plaintiff from this estate.