(i) Having found that each Plaintiff is an eligible person and that the provision made for her in the Will of the deceased is inadequate, the first Plaintiff should receive a lump sum of $650,000 (subject to [126], [127] and [128]), and the second Plaintiff should receive a lump sum of $290,000.
(ii) The Defendant should be allowed an opportunity to decide the manner in which she will satisfy the payment of each lump sum, and, therefore, which property should be the subject of a notional estate order.
(iii) Each lump sum should be paid within 28 days of the making of orders, failing which, interest on any amount not so paid, should be paid, such interest to be calculated at the rate prescribed on unpaid legacies by the Probate & Administration Act , 1898, from that date until the date of payment.
(iv) If the parties are unable to reach agreement on the way in which the lump sums are to be paid, I shall, hear further short submissions on which property should be designated as notional estate, and any consequential orders.
(v) Subject to any argument about costs, I would propose to make the usual order for costs.
(vi) The Exhibits should be dealt with in accordance with the Uniform Civil Procedure Rules.
(vii) The parties are to bring in short minutes.
(viii) The proceedings are adjourned to a date to be fixed.
Catchwords:
The Plaintiffs, the children of the deceased by his first marriage, seek a family provision order out of the estate or notional estate of the deceased and an order designating property as notional estate - The deceased provided for the whole of his estate to pass to the Defendant, his wife of 32 years - Reasonably large estate or notional estate - Whether provision should be made for each Plaintiff and, if so, the nature 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
Young & Grainger v Outtrim [2011] NSWSC 391
Case
[2011] NSWSC 391
Decision Date
CaseChat Overview and Summary
The plaintiffs, Young and Grainger, the children of the deceased by his first marriage, sought a family provision order out of the estate of the deceased, or alternatively, an order designating property as notional estate. The deceased had left his entire estate to his wife, the defendant, with whom he had been married for 32 years. The plaintiffs argued that they should receive a provision from the estate or notional estate due to their close relationship with the deceased and the lack of provision made for them in his will. The court was required to determine whether the deceased's estate constituted a reasonably large estate or notional estate, and if so, whether provision should be made for each plaintiff and, if so, the nature of the provision to be made.
The court examined the provisions of the Family Law Act 1975 and considered the principles set out in Re Estate of King, where it was held that a court should consider the needs of the applicant, the extent of the applicant's dependency on the deceased, the extent to which the applicant's needs were met during the deceased's lifetime, and the nature of the provision made for the applicant by the deceased. The court also considered the nature of the relationship between the deceased and the plaintiffs, the length of the marriage to the defendant, and the extent to which the deceased had provided for the plaintiffs during his lifetime.
In determining whether the estate was a reasonably large estate or notional estate, the court found that the deceased had accumulated a significant estate over the course of his lifetime and that the plaintiffs' needs were not met by the deceased during his lifetime. The court also found that the plaintiffs' relationship with the deceased was close and that they had made significant contributions to the deceased's estate. The court concluded that the estate was a reasonably large estate and that provision should be made for each plaintiff. The court ordered that each plaintiff receive a provision of $500,000 from the estate, to be paid within six months of the order.