Provision to be given in lieu of provision under Will — Parties to bring in short minutes of order
Catchwords:
SUCCESSION — Family provision — Large estate ($14.4M - $17.4M) — Claim by a widower of a lengthy marriage. Lump sum provision given to widower in lieu of $1M trust fund under Will allowing for purchase of accommodation and availability of income on balance of trust fund monies after cost of accommodation — Provision sought to cover claims for accommodation, and a lump sum for contingencies and to address a potential contingent liability arising from a potential payback to Centrelink of an amount arising from receipt of a disability support pension — Determination that widower not given adequate provision and order made for provision in lieu of trust fund provisions — Claim for a sum to address potential contingent liability rejected
SUCCESSION — Family provision — Discussion of statutory scheme and nature of the evaluative task — What is “proper provision” is not limited by some fixed concept or defined content. It requires an evaluative judgment that has regard to all relevant circumstances, not merely the parties’ financial circumstances — The Court is left to form opinions on the basis of its own general knowledge and experience of current social conditions and standards. In each case the Court applies a standard appropriate to all the circumstances of the case
SUCCESSION — Family provision — Fact finding in family provision cases — Difficulties of fact finding in respect of historical family disputes — Little point in attempting to make concluded findings about matters of only marginal significance or otherwise irrelevant — However, the Court is assisted by cross-examination on significant matters regarding contributions or significant claims for provision
SUCCESSION — Family provision — Discussion of approach to applications involving large estates characterised by no competing claims
SUCCESSION — Family provision — Discussion of approaches to large “windfall” increase in value of main asset of the estate
SUCCESSION — Family provision — Discussion of relevance of nature of marriage to assessment of family provision claims
SUCCESSION — Family provision — Discussion of whether any differing approach applies to family provision claims by widowers as distinct from claims by widows
SUCCESSION — Family provision — Discussion regarding obligations of disclosure in family provision cases including early disclosure of information and obtaining Centrelink records. Distinction between “full and frank disclosure” and disclosure for the purposes of assessing the family provision claim
SUCCESSION — Family provision — Discussion…
Grounds of appeal
[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
Tarbes v Taleb [2023] NSWSC 565
Case
[2023] NSWSC 565
Decision Date
CaseChat Overview and Summary
The case of Tarbes v Taleb involved a widower seeking family provision from the estate of his late wife, who had passed away leaving an estate valued between $14.4 million and $17.4 million. The deceased had left her widower a lump sum provision in lieu of a trust fund under her will, which would have allowed him to purchase accommodation and access income from the balance of the trust fund after the cost of accommodation. The widower sought additional provision to cover claims for accommodation, a lump sum for contingencies, and to address a potential contingent liability arising from a possible payback to Centrelink due to his receipt of a disability support pension.
The court was required to determine whether the widower had been provided with adequate provision under the deceased's will, and if not, what additional provision should be made. The court also had to consider the nature of the marriage and the relevance of the potential contingent liability in making its determination. The court emphasised that the concept of "proper provision" under the Family Provision Act is not limited by a fixed concept or defined content, but rather requires an evaluative judgment that takes into account all relevant circumstances. The court also noted that in cases involving large estates with no competing claims, it may be appropriate to make a more generous provision.
After considering the evidence and arguments presented by both parties, the court found that the widower had not been given adequate provision under the deceased's will. The court made an order for provision in lieu of the trust fund provisions, but rejected the widower's claim for a sum to address the potential contingent liability. The court found that the widower had not made a full and frank disclosure of all relevant information, including obtaining Centrelink records, and that the potential contingent liability was speculative and of marginal significance. The court also noted that the nature of the marriage and the widower's contributions to the deceased's estate were relevant factors in making its determination.