Talent v Talent

Case [2020] ACTSC 240


SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Talent v Talent

Citation:

[2020] ACTSC 240

Hearing Dates:

13-16 July 2020

DecisionDate:

10 September 2020

Before:

McWilliam AsJ

Decision:

See [30], [93]-[94], [100]

Catchwords:

SUCCESSION – FAMILY PROVISION – Extension of time – where delay in bringing application for family provision – where no evidence as to a satisfactory explanation for the delay but delay is short – where no prejudice as a result of the delay – where there is an arguable case for provision – extension of time granted.

SUCCESSION – FAMILY PROVISION – Where no provision was made for the plaintiff under the will – where plaintiff is the adult son of the testator, is bankrupt, has a form of leukaemia and was living with the testator at the time of her death – where primary beneficiary under the will accepts provision ought be made – consideration of what constitutes proper provision.

Legislation Cited:

Administration and Probate Act 1929 (ACT) s 43

Family Provision Act 1969 (ACT) ss 7, 8, 9
Succession Act 2006 (NSW) ss 59, 60
Trustee Act 1925 (ACT) ss 91, 92(2)

Wills, Probate and Administration Act 1898 (NSW) s 46

Cases Cited:

Brunoro v Brunoro (No 3) [2016] ACTSC 189

Camernik v Reholc [2012] NSWSC 1537
Ford v Simes [2009] NSWCA 351
Goodman v Windeyer (1980) 144 CLR 490
Hughes v National Trustees, Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134
Hunter v Hunter (1987) 8 NSWLR 573
McKenzie v Topp [2004] VSC 90
Phillips v James [2014] NSWCA 4; 85 NSWLR 619
Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9
Re Guskett (1947) VLR 212
Revell v Revell [2016] NSWSC 947
Roberts v Stern [2017] ACTSC 182
Sgro v Thompson [2017] NSWCA 326
Slack v Rogan; Palffy v Rogan & Anor [2013] NSWSC 522; 85 NSWLR 253
Smith v Johnson [2015] NSWCA 297
Smith v Public Trustee of the Australian Capital Territory [2012] ACTSC 4; 6 ACTLR 126
Stott v Cook (1960) 33 ALJR 447

Vigolo v Bostin [2005] HCA 11; 221 CLR 191

Parties:

John James Talent (Plaintiff in SC 414 of 2019; Defendant in SC 557 of 2019)

Nadia Joan Talent (Second Defendant in SC 414 of 2019; Plaintiff in SC 557 of 2019)

Representation:

Counsel

T Crispin (Plaintiff in SC 414 of 2019; Defendant in SC 557 of 2019)

D Moujalli (Second Defendant in SC 414 of 2019; Plaintiff in SC 557 of 2019)

Solicitors

Ray Swift Moutrage & Associates (Plaintiff in SC 414 of 2019; Defendant in SC 557 of 2019)

Gil-Jones Barker Solicitors (Second Defendant in SC 414 of 2019; Plaintiff in SC 557 of 2019)

File Numbers:

SC 414 of 2019 & SC 557 of 2019

McWilliam AsJ:

  1. Before the Court are two disputes involving a brother and a sister, John James Talent and Nadia Joan Talent, being the only living children of the late Joan Gwen Talent (the Testator),…

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AGLC
Talent v Talent [2020] ACTSC 240
Case
[2020] ACTSC 240
Decision Date

CaseChat Overview and Summary

The case of Talent v Talent was heard in the Supreme Court of Queensland, where the plaintiff, an adult son, sought family provision from his deceased mother's estate. The son was the only child of the deceased, who passed away leaving no specific provision for him in her will. The plaintiff, who is bankrupt, suffers from a form of leukaemia, and was living with the deceased at the time of her death, argued that the estate should provide for his needs. The primary beneficiary of the estate agreed that some provision should be made for the plaintiff.

The court was required to decide two main legal issues. Firstly, whether the delay in bringing the application for family provision should result in the application being dismissed, despite the absence of evidence suggesting a satisfactory explanation for the delay, but with the delay being relatively short and no prejudice caused. Secondly, considering the circumstances of the plaintiff, what would constitute proper provision under the Family Provision Act.

The court granted an extension of time for the application due to the short delay and lack of prejudice. It acknowledged the arguable case for family provision based on the plaintiff's circumstances, including his health, financial situation, and living arrangement with the deceased. The court found that the primary beneficiary's agreement to some provision for the plaintiff was significant. It then considered the appropriate amount of provision, taking into account the plaintiff's needs and the size of the estate.

The final orders included granting an extension of time for the application and determining the amount of provision to be made from the estate to the plaintiff, as detailed in the court's reasons.

Orders

Orders of the court

See [30], [93]-[94], [100]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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