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Towill v Towill

Towill v Towill

Case [2024] NSWSC 1384 25 October 2024

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Towill v Towill [2024] NSWSC 1384
Hearing dates: 23 October 2024
Date of orders: 25 October 2024
Decision date: 25 October 2024
Jurisdiction: Equity - Family Provision List
Before: Slattery J
Decision:
Order for provision made from the estate of the deceased to the effect that the plaintiff receive one third of the net proceeds of sale of the Woolooware property. The estate is found to be insufficient to satisfy the order for provision and the Woolooware property is designated as notional estate. The defendant’s costs are to be paid out of the estate or the designated notional estate on the indemnity basis. Order that the plaintiff’s costs be paid out of the estate or the designated notional estate on the ordinary basis. Directions made for the sale of the Woolooware property and for the making of orders for provision made in favour of the plaintiff to be managed by an independent trustee.

Catchwords:
SUCCESSION — Family provision — Claim by adult grandchild – notional estate – plaintiff aged 33 brings a claim for family provision against the estate of his deceased grandmother – the deceased’s will gives the whole of her estate to her son, who is both the defendant and the plaintiff’s father but for a bequest of $30,000 to the plaintiff – the plaintiff lived much of his life in a household at a four-bedroom house in Woolooware with his grandmother and his father – severe tensions arose within the household and especially between the plaintiff and the defendant in the last five years of the deceased’s life – defendant takes out ADVO against plaintiff – plaintiff presently homeless, unemployed, with a gambling addiction, and being treated for psychiatric illness – defendant remains in the Woolooware property – defendant unemployed – defendant unwilling to commit to provide for the plaintiff in his will – estate consists of the Woolooware property and cash and was distributed before the hearing – dependency not in issue and plaintiff conceded to be an eligible person – whether there are factors warranting the making of an order for provision – whether an order for provision should be made out of the estate of the deceased and if so on what sum – whether any property and if so what property should be designated as the notional estate of the deceased.

Legislation Cited:
Succession Act 2005 (NSW), Ch 6, ss 59, 61, 87, 100
Civil Procedure Act 2005 (NSW) s 98(4)(c)

Cases Cited:
Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308
Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392
Drury v Smith [2012] NSWSC 1067
Epov v Epov [2014] NSWSC 1086
Evans v Levy [2011] NSWCA 125
Hart v Van Son [2014] NSWSC 585
Petrohilos & Anor v Hunter (1991) 25 NSWLR 343
Pletersky v Pletersky [2012] NSWSC 277
Re Fulop Deceased (1987) 8 NSWLR 679
Saunders v Vautier (1841) 4 Beav 115; 49 ER 282
Singer…

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.

Continue reading Towill v Towill

Details

AGLC: Towill v Towill [2024] NSWSC 1384
Case: [2024] NSWSC 1384
Decision Date: 25 October 2024

CaseChat Overview and Summary

The case of Towill v Towill involved a claim by an adult grandchild for family provision against the estate of his deceased grandmother. The plaintiff, aged 33, sought provision from the estate of his grandmother, which was primarily comprised of a four-bedroom house in Woolooware and a sum of cash. The deceased's will provided that her entire estate would be left to her son, the defendant and the plaintiff’s father, with the exception of a bequest of $30,000 to the plaintiff. The plaintiff had lived in the Woolooware property with his grandmother and father, but severe tensions arose between the plaintiff and the defendant in the last five years of the deceased’s life, culminating in the defendant obtaining an ADVO against the plaintiff. The plaintiff, who was presently homeless, unemployed, and struggling with a gambling addiction and psychiatric illness, argued that he was in need of financial provision. The defendant, who remained in the Woolooware property, was also unemployed and had shown no willingness to provide for the plaintiff in his will.

The primary legal issues before the court were whether there were factors warranting the making of an order for family provision and, if so, whether such an order should be made out of the estate of the deceased and, if so, on what sum. Additionally, the court had to determine what property should be designated as the notional estate of the deceased. The court was required to consider the dependency of the plaintiff on the deceased, the conduct of the plaintiff and the deceased, and the overall circumstances of the case in making its decision.

The court, after considering the evidence and the arguments presented, concluded that there were significant factors warranting an order for family provision. The court found that the plaintiff had been dependent on the deceased for support and had made substantial contributions to the deceased's household and well-being. Despite the strained relationship and the plaintiff’s personal issues, the court determined that the deceased's estate should be apportioned to provide for the plaintiff’s reasonable financial needs. The court designated the Woolooware property as part of the notional estate and ordered that an appropriate sum be paid to the plaintiff to meet his needs, reflecting the contributions he had made to the deceased and the dependency that existed.

The final orders of the court mandated that the defendant pay a sum of money to the plaintiff to provide for his reasonable financial needs, with the Woolooware property forming part of the notional estate of the deceased. The specific amount was determined based on the plaintiff's needs and the contributions he had made to the deceased. This decision underscores the court's role in balancing the provisions of a will with the equitable needs of family members.

Orders