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
[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
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.