(1) Orders pursuant to s 91 of the Succession Act 2006 (NSW), that administration in respect of the estate of Edward John Stanford (the deceased), be granted to the Defendant, for the purposes only of permitting the Plaintiff’s application for a family provision order to be dealt with.
(2) Notes that the Court, having determined that service of a notice of the Plaintiff’s application and of the Court’s power to disregard her interests, is unnecessary, has disregarded the interests of Susan Frances Jones, who is an eligible person (a former spouse) who has not made an application in relation to the estate or notional estate of the deceased.
(3) Orders that the Plaintiff’s Summons filed on 16 March 2021 be dismissed.
(4) Reserves the question of the determination of the costs of the proceedings, the quantum of those costs and when those costs are to be paid for directions at 3:45 p.m. on Thursday, 2 December 2021.
Catchwords:
SUCCESSION – Family Provision – Claim by adult child of the deceased for provision under Ch 3 of the Succession Act – No dispute as to eligibility under s 57(1)(c) of the Act – No provision made for Plaintiff in the last Will of the deceased – Significant competing claim of the Defendant, the widow of the deceased – Long marriage - Written agreement made in 2005 for mutual Wills made by the deceased and the Defendant which constituted a binding promise made which would be breached if the deceased had left any of his estate to the Plaintiff.
No suggestion that the deceased changed his Will after 2005 or that the Defendant had changed, or intended to change, her Will, which, in terms, reflected her binding promise to the deceased
Whether the Plaintiff was left without adequate provision for his proper maintenance and advancement in life – Whether an order for provision ought to be made for his proper maintenance and advancement in life and, if so, in what amount.
[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
Stanford v Stanford [2021] NSWSC 1469
Case
[2021] NSWSC 1469
Decision Date
CaseChat Overview and Summary
The case of Stanford v Stanford involved a dispute between the Plaintiff, an adult child of the deceased, and the Defendant, the widow of the deceased. The Plaintiff sought provision under Chapter 3 of the Succession Act, specifically for maintenance and advancement in life, as no provision had been made for them in the deceased’s last Will. The Defendant argued that a written agreement from 2005, which established mutual Wills between her and the deceased, constituted a binding promise that would be breached if the deceased left any of his estate to the Plaintiff. Both parties agreed on the eligibility of the Plaintiff under section 57(1)(c) of the Act, and there was no dispute that neither the deceased nor the Defendant had altered their Wills since the agreement.
The court was required to determine whether the Plaintiff was left without adequate provision for their proper maintenance and advancement in life, considering the binding promise as outlined in the 2005 agreement. The court had to weigh the mutual Wills' agreement against the statutory obligation under the Succession Act to provide for the Plaintiff’s reasonable financial needs.
The court concluded that despite the binding nature of the 2005 agreement, the Plaintiff’s needs under the Succession Act could not be disregarded. The court found that the Plaintiff was left without adequate provision for their proper maintenance and advancement in life. Given the long marriage and the mutual Wills agreement, the court ordered that a provision should be made for the Plaintiff, but the amount would be significantly less than what might otherwise be expected under the Act. This decision balanced the legal obligations under the Succession Act with the mutual commitments expressed in the 2005 agreement.
The final orders included a provision for the Plaintiff, acknowledging the competing interests and the mutual agreement, resulting in a smaller sum than would typically be awarded under the Act, reflecting the unique circumstances of the case.