(i) Having found that each 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, order that the Plaintiff, Cheryl Ann Kennedy, receive a lump sum of $50,000; the Plaintiff, Dianne Patricia Doherty, receive a lump sum of $40,000; and the Plaintiff, Lorraine Kathleen Meharg, receive a lump sum of $35,000 out of property designated as notional estate of the deceased unless otherwise paid by the Defendant, Faye Anderson Wisbey.
(ii) Being satisfied that the deceased's actual estate is insufficient for the making of the family provision orders, and the costs orders, that should be made, the burden of the provision made for each Plaintiff, any interest thereon, and the costs, should be borne out of property designated as notional estate of the deceased unless otherwise paid by the Defendant.
(iii) Order that the Defendant pay each of the lump sums and pay or provide security for the Plaintiffs' costs within 28 days, failing which consideration is reserved to any party to apply for an order designating property held by the Defendant for the purposes of satisfying the family provision orders made any interest thereon, and for satisfying the orders for costs of proceedings.
(iv) Order that no interest is to be paid on each lump sum, if that lump sum is paid within 28 days of the making of these orders; otherwise, interest calculated at the rate prescribed by s 84A(3) Probate and Administration Act 1898, on unpaid legacies, is to be paid from that date until the date of payment of the lump sum.
(v) Order that the Defendant pay the costs of the Plaintiffs, calculated on the ordinary basis, and her own costs calculated on the indemnity basis out of the notional estate of the deceased unless otherwise paid by her.
(vi) Order pursuant to s 72 of the Succession Act 2006 that each family provision order not take effect as if the provision was made in a codicil to the will of the deceased.
(v) Order that the Exhibits should be dealt with in accordance with the Uniform Civil Procedure Rules 2005 following the determination of the costs of the proceedings.
Catchwords:
SUCCESSION - FAMILY PROVISION - The Plaintiffs, daughters of the deceased, each applies for a family provision order under Chapter 3 of the Succession Act 2006 - The Defendant is the widow of the deceased - Deceased left Will but no application for administration made at date of hearing - Whether grant of administration is necessary in order to deal with application - Whether adequate and proper provision not made in Will of the deceased for each Plaintiff and if so the nature and quantum of the provision to…
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.
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AGLC
Wheat v Wisbey [2013] NSWSC 537
Case
[2013] NSWSC 537
Decision Date
CaseChat Overview and Summary
The plaintiffs, the daughters of the deceased, brought an application for a family provision order under Chapter 3 of the Succession Act 2006, against the widow of the deceased, the defendant. The deceased had left a Will but no application for administration of the estate had been made at the time of the hearing. The court was required to determine whether the grant of administration was necessary in order to deal with the application and whether adequate and proper provision had not been made in the Will for each plaintiff, and if so, the nature and quantum of the provision to be made. The court held that the grant of administration was not necessary to deal with the application and that adequate and proper provision had not been made for each plaintiff. The court made an order for the defendant to pay a sum of money to each plaintiff, which was deemed to be the adequate and proper provision that should have been made in the Will.
The court considered the relevant statutory provisions and case law in reaching its decision. The court noted that the plaintiffs had the onus of proving that adequate and proper provision had not been made for them in the Will. The court found that the plaintiffs had discharged this onus and that the Will did not make adequate and proper provision for them. The court also considered the principles of fairness and justice in making its decision, taking into account the deceased's assets, the needs of the plaintiffs, and the terms of the Will. The court concluded that the plaintiffs were entitled to a family provision order and made an order for the defendant to pay a sum of money to each plaintiff.