Legal Research
Cases
Underwood v Gaudron

Underwood v Gaudron

Case [2014] NSWSC 1055 7 August 2014

Family Provision

Adequate and Proper Provision

Special Circumstances

Notional Estate

Succession Law

Type to search within this case.

Supreme Court

New South Wales

Medium Neutral Citation: Underwood v Gaudron [2014] NSWSC 1055
Hearing dates: 22 and 24 July 2014
Decision date: 07 August 2014
Jurisdiction: Equity Division
Before: Hallen J
Decision:
(a) The Plaintiff's amended Summons is dismissed.
(b) Subject to any submissions, there be no order as to either party's costs, to the intent that she, and they, are to pay her, and their, own costs of the proceedings.
(c) The Exhibits should be dealt with in accordance with the Uniform Civil Procedure Rules 2005 (NSW) (rule 31.16A and rule 33.10), and Practice Note SC Gen 18 (Para 26) following the determination of the costs of the proceedings.

Catchwords: SUCCESSION - FAMILY PROVISION - The Plaintiff, a daughter of the deceased, applies for a family provision order under Chapter 3 of the Succession Act 2006 - The Defendants also children of the deceased - Deceased left Will in which no provision made for the Plaintiff - Explanation given - 20 years of no contact between Plaintiff and the deceased - Small estate - Estate distributed - Proceedings not commenced within time - Whether sufficient cause shown - 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 - Whether property to be designated as notional estate - Whether "special circumstances"
Legislation Cited: Civil Procedure Act 2005 (NSW)
Family Provision Act 1982 (NSW)
Practice Note SC Eq 7
Practice Note SC Gen 18
Succession Amendment (Family Provision) Act 2008 (NSW)
Succession Act 1981 (QLD)
Succession Act 2006 (NSW)
Testator's Family Maintenance and Guardianship of Infants Act 1916 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Alexander v Jansson [2010] NSWCA 176
Allardice v Allardice; In re Allardice (1910) 29 NZLR 959
Allen (Deceased); Allen v Manchester [1922] NZLR 218
Andre v Perpetual Trustees WA Ltd as Executor of the Will of Barbara Helen Owen Stewart [2009] WASCA 14
Andrew v Andrew [2011] NSWSC 115
Andrew v Andrew [2012] NSWCA 308; (2012) 81 NSWLR 656
Aubrey v Kain [2014] NSWSC 15
Barna v Barna [2008] NSWSC 1402
Bartlett v Coomber [2008] NSWCA 100
Baychek v Baychek [2010] NSWSC 987
Blyth v Spencer; Spencer v Neville [2005] NSWSC 653
Bondelmonte v Blanckensee [1989] WAR 305
Bosch v Perpetual Trustee Co Ltd [1938] AC 463
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Buckland, Deceased, Re [1966] VR 404
Buggle v Buggle [2012] NSWSC 1009
Bull, Re [2006] VSC 113
Burke v Burke [2014] NSWSC 1015
Butcher v Craig [2009] WASC 164
Butler v Morris; Butler (bht NSW Trustee & Guardian) v Morris [2012] NSWSC 748,
Campbell v Chabert-McKay McKay [2010] NSWSC 859
Cameron v Cameron [2009] SASC 27
Carstrom v Boesen [2004] NSWSC 1109
Cetojevic v Cetojevic [2007] NSWCA 33
Charnock v Handley [2011] NSWSC 1408
Christie v Manera [2006] WASC 287
Coates v National Trustees Executors and Agency Co. Ltd [1956] HCA 23; (1956)…

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 Underwood v Gaudron

Details

AGLC: Underwood v Gaudron [2014] NSWSC 1055
Case: [2014] NSWSC 1055
Decision Date: 07 August 2014

CaseChat Overview and Summary

The Plaintiff, in this case, is a daughter of the deceased who seeks a family provision order under Chapter 3 of the Succession Act 2006. The Defendants are the other children of the deceased, who were named in the deceased’s Will. The deceased had not made any provision for the Plaintiff in the Will. The Plaintiff argues that the Will does not make adequate and proper provision for her and that the estate is insufficient to provide for her needs. The estate has been distributed, and the proceedings were not commenced within the statutory time frame. The Plaintiff seeks to have the proceedings extended on the grounds of sufficient cause and special circumstances.

The court had to decide whether the Plaintiff had shown sufficient cause for the delay in commencing proceedings. The court also had to determine whether the Will did not make adequate and proper provision for the Plaintiff and, if so, the nature and quantum of the provision to be made. The court also had to consider whether the property should be designated as the notional estate and whether special circumstances existed.

The court found that the Plaintiff had not shown sufficient cause for the delay in commencing proceedings. The court found that the Plaintiff had not shown that the estate was insufficient to provide for her needs. The court found that the Will made adequate and proper provision for the Plaintiff. The court found that the property should not be designated as the notional estate. The court found that there were no special circumstances. The court dismissed the Plaintiff’s application.

Orders