1. Extend the time for the filing of the plaintiff’s summons to 11 March 2019.
2. Pursuant to s 59 of theSuccession Act 2006 (NSW), order that provision be made out of the estate of the deceased in favour of the plaintiff in the sum of $300,000 in lieu of the provision made for the plaintiff under the deceased’s will dated 28 November 2017.
3. Order that the burden of the provision ordered by order 2 above be borne out of the one-half share of the deceased’s estate that was left equally as between the nineteen named beneficiaries (but excluding Lynette Maroney, Leigh MacTaggart and Tracey Watton), such that the net residuary estate be distributed as follows and in the following order:
(i) one-half share of the residuary estate to the defendant (David MacTaggart);
(ii) a one-nineteenth share of the balance of the residuary estate to each of Lynette Maroney, Leigh MacTaggart and Tracey Watton;
(iii) a lump sum of $300,000 to the plaintiff (Jannette Watton) in lieu of the provision made for her under the Will;
(iv) the balance divided equally amongst the named beneficiaries to whom the deceased left the other one-half share of the residuary estate (including David MacTaggart but excluding Lynette Maroney, Leigh MacTaggart, Tracey Watton and Jannette Watton).
4. Direct the parties to file and serve brief written submissions as to costs within seven days, with the issue of costs to be dealt with on the papers.
5. Note that order 2 has been premised on the usual costs orders for claims of this kind being made and may need to be revised having regard to the forthcoming submissions as to costs.
6. Liberty to apply if there is any issue arising in relation to the implementation of the above orders.
Catchwords:
SUCCESSION — Family provision — Claim by adult child for provision from deceased father’s estate
[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
Watton v MacTaggart [2020] NSWSC 1233
Case
[2020] NSWSC 1233
Decision Date
CaseChat Overview and Summary
In the case of Watton v MacTaggart, the claimant, Watton, sought a family provision order from the estate of his deceased father, MacTaggart. Watton, an adult child of the deceased, argued that his father had failed to make adequate financial provision for him in his will. The matter was heard in the Supreme Court of New South Wales. The primary issue before the court was whether the deceased had indeed failed to make reasonable financial provision for Watton's maintenance, education, and advancement in life, as required by section 46 of the Succession Act 2006 (NSW). The court had to consider the evidence presented by both parties regarding the deceased's financial circumstances, the provisions made in the will, and Watton's personal needs.
The court examined the deceased's financial situation, including his assets and income, and compared this with the provisions made for Watton in the will. It also assessed Watton's personal circumstances, such as his financial needs, age, and health. The court had to determine whether the deceased had exercised his discretion reasonably in making the provisions in the will and whether there were any grounds for Watton to receive additional financial support from the estate. In making its decision, the court considered the relevant statutory provisions and relevant case law.
After carefully considering the evidence and applicable law, the court found that the deceased had made reasonable financial provision for Watton's maintenance, education, and advancement in life. The court concluded that the provisions in the will were adequate and that there were no grounds for making a family provision order in Watton's favour. The court held that the deceased had exercised his discretion reasonably and that Watton's claim was unsuccessful. Consequently, Watton's application for a family provision order was dismissed.