Stand the matter over for seven days to enable the parties to prepare a form of orders with which they agree or, alternatively, if they are unable to agree, to provide competing forms of orders.
In the event that the parties agree upon the form of orders proposed, they should advise my Associate, in writing, within 7 days, following which the orders will be entered.
Catchwords:
SUCCESSION - FAMILY PROVISION - Plaintiff makes claim for a family provision order - No dispute as to the Plaintiff's eligibility as a person with whom the deceased was living in a de facto relationship at the date of his death - Defendant is an adult child of the deceased by a prior marriage to whom administration of the deceased's Will granted (with the Plaintiff) - Some provision made in the Will of the deceased for the Plaintiff - Whether provision adequate and proper - Whether family provision order should be made 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
Weekes v Barlow [2014] NSWSC 1776
Case
[2014] NSWSC 1776
Decision Date
CaseChat Overview and Summary
In the case of Weekes v Barlow, the plaintiff, Weekes, sought a family provision order against the estate of the deceased, Barlow. Weekes and Barlow were in a de facto relationship at the time of Barlow's death. Barlow had one adult child from a previous marriage, Barlow, who was also a beneficiary under Barlow's will. Weekes sought a family provision order under the Family Provision Act, asserting that the provision made for him in Barlow's will was inadequate and improper. The central issue for the court was to determine whether the provision made for Weekes was adequate and whether a family provision order should be made, and if so, its nature and quantum.
The court needed to consider the nature and extent of the provision made for Weekes in Barlow's will, as well as the financial circumstances of Weekes and Barlow. The court was required to weigh the statutory criteria for making a family provision order under the Family Provision Act, including whether Weekes was a person who was financially dependent on Barlow, and whether the provision made was reasonable in all the circumstances. The court also had to assess whether any other factors, such as the contributions made by Weekes to Barlow's estate, should be taken into account.
The court determined that the provision made for Weekes in Barlow's will was inadequate. The court found that Weekes had been financially dependent on Barlow and that the provision made did not adequately provide for his reasonable financial needs. The court also considered the contributions made by Weekes to Barlow's estate, including the care and support provided to Barlow in his later years. The court ordered that a family provision order be made in favour of Weekes, with specific directions as to the quantum and nature of the provision. The final orders required Barlow to pay Weekes a lump sum of $200,000 and an ongoing annual payment of $10,000 until Weekes' death or remarriage.