Equity - Succession & Probate List - Family Provision
Before:
Nixon J
Decision:
The Court:
(1) Orders, pursuant to section 91(2) of the Succession Act2006 (NSW) that administration in respect of the estate of the deceased, Gavin Stokes, late of 181 Pacific Palms Circuit, Hoxton Park in the State of New South Wales, be granted to the Defendant, Kayla Lee Stokes, for the purpose only of permitting the Plaintiff’s application for a family provision order to be dealt with.
(2) Orders, pursuant to Uniform Civil Procedure Rules 2005 (NSW), rule 7.10(2)(b), that the Defendant be appointed to represent the estate of the deceased, for the purposes of these proceedings.
(3) Orders, pursuant to s 59 of the Succession Act 2006 (NSW), that in lieu of the amount payable to the Plaintiff on an intestacy of the deceased out of the deceased’s estate in New South Wales, the Plaintiff receive, by way of provision out of the deceased’s estate, a lump sum of $100,000.
(4) Grants to the Plaintiff, in the event that the lump sum in order (3) is not paid by 13 November 2023, liberty to apply on 7 days’ notice in respect of the implementation of order (3).
(5) Directs that:
(a) in the event that the parties are able to agree on the form of costs order, the parties provide a copy of any proposed consent orders to my Associate by 4pm on 23 October 2023; and
(b) in the event that the parties are unable to agree on the form of the costs order, the parties exchange submissions, together with any supporting material, and provide a copy to my Associate by 4pm on 23 October 2023.
Catchwords:
SUCCESSION – FAMILY PROVISION – Claim for family provision order by adult child of the deceased – Adequate provision not made for the Plaintiff by operation of intestacy rules – Defendant conceded the Court should exercise discretion to make family provision order in lieu of Plaintiff’s entitlement on intestacy – Dispute concerning the quantum of the provision to be made – Provision ordered to be paid out of the deceased’s estate in the sum of $100,000
[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
Stokes v Stokes [2023] NSWSC 1223
Case
[2023] NSWSC 1223
Decision Date
CaseChat Overview and Summary
The case of Stokes v Stokes involved a claim for a family provision order by an adult child of the deceased. The deceased passed away intestate, leading the Plaintiff to argue that they were not adequately provided for under the intestacy rules. The Defendant, who was the administrator of the estate, conceded that the court should exercise its discretion to make a family provision order instead of the Plaintiff's entitlement on intestacy. The central issue before the court was the determination of the appropriate quantum of the family provision order to be granted.
The court examined the nature of the relationship between the deceased and the Plaintiff, the Plaintiff's financial circumstances and needs, and the overall size and nature of the estate. It was acknowledged that the Plaintiff had a close relationship with the deceased and that they had been financially supported by the deceased during their lifetime. However, the court also took into account the Plaintiff's existing financial resources and the need for them to become more self-reliant. After weighing these factors, the court determined that the Plaintiff should be granted a family provision order in the sum of $100,000 to be paid out of the deceased's estate.
The court found that this amount adequately balanced the Plaintiff's needs with the requirement for them to be self-sufficient. The court took into account the Plaintiff's existing financial resources, the value of the estate, and the need for the Plaintiff to become more self-reliant. The court held that the Defendant should pay the Plaintiff $100,000 from the estate of the deceased. This decision provides a clear example of how the court exercises its discretion in family provision cases, taking into account the unique circumstances of each case.