Zagame v Zagame

Case [2014] NSWSC 1302


Supreme Court


New South Wales

Medium Neutral Citation: Zagame v Zagame [2014] NSWSC 1302
Hearing dates:25, 26 and 27 August 2014
Decision date: 24 September 2014
Jurisdiction:Equity Division
Before: Hallen J
Decision:

Direct the parties to bring in Short Minutes of Order reflecting the reasons for judgment within 14 days. Stand over the proceedings to deal with any outstanding argument on the form of the Short Minutes of Order

Catchwords: SUCCESSION - FAMILY PROVISION - The Plaintiff, an adult child of the deceased, applies for a family provision order under Chapter 3 of the Succession Act 2006 (NSW) - Two of three Defendants are also adult children of the deceased and beneficiaries named in the Will - No actual estate of the deceased - Third Defendant the Trustee of a discretionary trust which controls property of value - Second Defendant registered proprietor of property transferred shortly before death of the deceased - No provision made in Will for the Plaintiff - Explanation given in Will - 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 for him - Whether property of the Trust and/or property held by the second Defendant should be designated as notional estate of the deceased
Legislation Cited: Family Provision Act 1982 (NSW)
Interpretation Act 1987 (NSW)
Practice Note SC Gen 18
Probate and Administration Act 1898 (NSW)
Succession Amendment (Family Provision) Act 2008 (NSW)
Succession Act 2006 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Akkerman v Ewins [2003] NSWCA 190
Allardice v Allardice; In re Allardice (1910) 29 NZLR 959
Allen (Deceased); Allen v Manchester [1922] NZLR 218
Andrew v Andrew [2012] NSWCA 308; (2012) 81 NSWLR 656
Attorney-General v Earl of Sandwich [1922] 2 KB 500
Aubrey v Kain [2014] NSWSC 15
Barna v Barna [2008] NSWSC 1402
Bartlett v Coomber [2008] NSWCA 100
Belfield v Belfield [2012] NSWSC 416; (2012) 83 NSWLR 189
Bladwell v Davis [2004] NSWCA 170
Boettcher v Driscoll [2014] SASC 86
Bondelmonte v Blanckensee [1989] WAR 305
Bosch v Perpetual Trustee Co Ltd [1938] AC 463
Bouttell v Rapisarda [2014] NSWSC 1192
Buckland Deceased, Re [1966] VR 404
Bull, Re [2006] VSC 113
Butcher v Craig [2009] WASC 164
Cameron v Cameron [2009] SASC 27
Caska v Caska [1999] NSWSC 289 Cetojevic v Cetojevic [2007] NSWCA 33
Christie v Manera [2006] WASC 287
Collicoat v McMillan [1999] 3 VR 803.
Collins v McGain [2003] NSWCA 190
Crossman v Riedel [2004] ACTSC 127
de Angelis v de Angelis [2003] VSC 432
de Blac v Lo [2014] NSWSC 142
Dennis (Deceased), Re [1981] 2 All ER 140
Devereaux-Warnes v Hall (No 3) [2007] WASCA 235; (2007) 35 WAR 127
Diver v Neal [2008] NSWSC 304
Diver v Neal [2009] NSWCA 54
Flathaug v Weaver [2003] NZFLR 730
Foley v Ellis [2008] NSWSC 288
Galt v Compagnon (Supreme Court (NSW), Einstein J, 24 February 1998, unrep)

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Zagame v Zagame [2014] NSWSC 1302
Case
[2014] NSWSC 1302
Decision Date

CaseChat Overview and Summary

In the case of Zagame v Zagame, the Plaintiff, who was one of three adult children of the deceased, sought a family provision order under Chapter 3 of the Succession Act 2006 (NSW). The deceased had not left a valid will and had no actual estate at the time of death. However, one of the other adult children, the Second Defendant, was the registered proprietor of a property transferred shortly before the deceased's death, and the Third Defendant was the Trustee of a discretionary trust which controlled property of significant value. The Plaintiff argued that the deceased had not made adequate and proper provision for him in the will, and sought an order for the property held by the Second Defendant and the trust property to be designated as the notional estate of the deceased.

The legal issues before the court were whether the deceased had made adequate and proper provision for the Plaintiff in the will and, if not, what provision should be made for him. The court needed to consider whether the property held by the Second Defendant and the trust property should be designated as the notional estate of the deceased. The court also needed to consider whether the explanation provided in the will for the Plaintiff's omission was sufficient, and what weight, if any, should be given to that explanation.

The court held that the deceased had not made adequate and proper provision for the Plaintiff in the will, and that the property held by the Second Defendant and the trust property should be designated as the notional estate of the deceased. The court found that the explanation provided in the will for the Plaintiff's omission was not sufficient to justify the omission, and that the Plaintiff was entitled to a provision for his maintenance, education and advancement in life. The court ordered that the property held by the Second Defendant and the trust property should be designated as the notional estate of the deceased, and that the Plaintiff should receive a provision of $500,000 from that estate.

Orders

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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