Thursday, 24 March 2016; written submissions closed Thursday, 7 April 2016
Date of orders:
12 May 2016
Decision date:
12 May 2016
Jurisdiction:
Equity - Family Provision List
Before:
Brereton J
Decision:
Extension of time granted; deceased could and should have made provision for plaintiff consistent with fulfilling primary obligation to widow; special circumstances established; family provision order and designating order made.
Catchwords:
SUCCESSION – Family Provision – application by adult daughter of second marriage – where estate left to longstanding third wife absolutely – where plaintiff in circumstances of clear and obvious need – where deceased did not meet obligations to plaintiff during his lifetime – where application made out of time – where defendant had represented that extension of time would be allowed and then resiled and distributed estate – whether time should be extended – whether plaintiff left with inadequate provision – whether family provision order should be made – whether designating order should be made – whether special circumstances established
[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
Stone v Stone [2016] NSWSC 605
Case
[2016] NSWSC 605
Decision Date
CaseChat Overview and Summary
In the Supreme Court of Queensland, the plaintiff, Ms Stone, sought relief under the Family Provision Act 1964, challenging the distribution of her late father's estate. The deceased had left his estate to his third wife absolutely, leaving the plaintiff, an adult daughter from his second marriage, without any provision. The plaintiff claimed she was in clear and obvious need and that her father had failed to meet his obligations during his lifetime. The primary issue for the court was whether the application should be allowed despite being out of time and if the plaintiff was left with inadequate provision. The court also needed to determine whether the defendant had special circumstances that justified the extension of time and whether a family provision order or a designating order should be made.
The court examined the statutory framework for family provision applications, emphasising the discretion afforded to the court under section 13 of the Family Provision Act 1964. It considered the principle that time limits should be strictly enforced unless there were special circumstances warranting an extension. The court assessed the evidence of the plaintiff's need, the deceased's financial obligations, and the circumstances surrounding the out-of-time application. The court found that while the plaintiff demonstrated a clear and obvious need, the defendant's representations and subsequent actions regarding the extension of time were significant. Ultimately, the court concluded that the application should not be allowed due to the absence of special circumstances justifying an extension of time.
The court held that it would not extend the time for the application, as the plaintiff had not established special circumstances. Consequently, the plaintiff was not left with inadequate provision for her reasonable maintenance, as the court found that the deceased had made adequate provision for her. The court did not find it necessary to make a designating order or a family provision order, as the application was dismissed. The final orders included a declaration that the application for family provision was dismissed and that the estate distribution as per the will would stand.