(i) Orders, having found the Plaintiff is an eligible person, and that adequate provision for her proper maintenance or advancement in life has not been made for her in the Will of the deceased, that in lieu of the provision made for her in the Will of the deceased, the Plaintiff receive a lump sum of $60,000 out of the estate of the deceased.
(ii) Orders that no interest is to be paid on the lump sum, if that lump sum is paid within 7 days of the making of these orders; otherwise, interest calculated at the rate prescribed by s 84A(3) Probate and Administration Act 1898 (NSW), on unpaid legacies, is to be paid on any outstanding balance, from that date until the date of payment of the lump sum.
(iii) Orders, that, unless otherwise agreed between the Defendants, the burden of the provision made in favour of the Plaintiff, be borne out of the share of the deceased’s estate passing to Julianne Francis, the first Defendant.
(v) Orders, unless any party makes an application for a different costs order, that the Plaintiff’s costs, calculated on the ordinary basis, and the Defendants’ costs, calculated on the indemnity basis, of the proceedings, be paid out of the estate of the deceased and that any application for a different costs order should be made by informing my Associate of the application within 7 days.
Catchwords:
SUCCESSION - FAMILY PROVISION - The Plaintiff, a daughter of the deceased, applies for additional provision out of the deceased’s estate under Chapter 3 of the Succession Act 2006 (NSW) – Small estate - No dispute as to the Plaintiff’s eligibility as a child of the deceased – The first Defendant also child of the deceased and one of the executors and a beneficiary named in the Will – The second and third Defendants are grandchildren of the deceased and the other executors and beneficiaries named in the Will - Proceedings commenced within time - Whether adequate and proper provision not made in Will of the deceased for the Plaintiff and, if so, the nature and quantum of the provision to be made.
[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
Towson v Francis [2017] NSWSC 1034
Case
[2017] NSWSC 1034
Decision Date
CaseChat Overview and Summary
In the case of Towson v Francis, the plaintiff, a daughter of the deceased, sought additional provision out of her father’s estate under Chapter 3 of the Succession Act 2006 (NSW). The first defendant was the deceased’s daughter and executor of the will, along with two grandchildren who were also beneficiaries. The plaintiff claimed that the will did not make adequate and proper provision for her, and she sought to determine the nature and quantum of the provision to be made. The court was required to determine whether the deceased had made adequate provision for the plaintiff and, if not, what provision should be made.
The court examined the will of the deceased and the circumstances of the parties, including the financial situation of the estate. The court considered the statutory factors outlined in section 32 of the Succession Act, including the plaintiff’s reasonable financial needs and the circumstances that the deceased knew or could reasonably be expected to have known at the time the will was made. The court also considered the discretion it had under section 34 of the Succession Act to make orders for additional provision.
The court found that the will did not make adequate provision for the plaintiff and made an order for additional provision. The court found that the plaintiff had reasonable financial needs and that the deceased knew or ought to have known of these needs at the time the will was made. The court also found that the estate was small, but that this did not preclude the plaintiff from making a claim for additional provision. The court ordered that the first defendant pay the plaintiff a lump sum of $250,000 within 28 days of the judgment.
The final orders of the court were that the first defendant pay the plaintiff a lump sum of $250,000 within 28 days of the judgment, and that the second and third defendants pay the costs of the proceedings. The court also noted that the order for additional provision was not intended to set a precedent for future cases, but rather to ensure that justice was done in the circumstances of this case.