Ebert v Ebert; Ebert v Ebert [2008] NSWSC 1206

Ebert v Ebert; Ebert v Ebert [2008] NSWSC 1206

Nicole Ebert failed to explain her delay in making a notional estate claim against property of Craig Ebert, so leave to extend time was refused. The court found the provision for Nicole under the will was inadequate, but the estate did not include as a debt the sums advanced to Craig or for the benefit of the Business, and the relevant transaction was not such that notional estate could be designated. The residue of the estate was ordered to be paid to Nicole after costs and legacies.

Jurisdiction
Australia
Judgment Date
14 November 2008
Procedural Posture
Succession/family Provision Proceedings / Judgment After Final Hearing
Outcome
In 4273/07, order made for provision in favour of the cross-claimant Nicole Ebert. In 4560/08, Craig Ebert’s summons dismissed with no order as to costs.
Legal Topics
['family Provision' 'notional Estate' 'extension of Time' 'distribution of Estate' 'interpretation of Will']
['succession Law' 'equity' 'family Provision'] ['family Provision' 'notional Estate' 'extension of Time' 'distribution of Estate' 'interpretation of Will']

Case Brief

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Procedural Posture

Succession/family Provision Proceedings / Judgment After Final Hearing

Legal Issues

  1. 1 ["Whether application for notional estate out of Craig Ebert's property can be made out of time" 'Whether provision made for Nicole Ebert under the will was inadequate' 'Whether sums advanced to Craig Ebert or the Business were loans repayable to the estate' 'Whether the $450,000 mortgage transaction was a prescribed transaction for notional estate purposes' 'What, if any, proper provision should be made for Nicole Ebert']

Ratio Decidendi

Nicole Ebert failed to explain her delay in making a notional estate claim against property of Craig Ebert, so leave to extend time was refused. The court found the provision for Nicole under the will was inadequate, but the estate did not include as a debt the sums advanced to Craig or for the benefit of the Business, and the relevant transaction was not such that notional estate could be designated. The residue of the estate was ordered to be paid to Nicole after costs and legacies.

Court Disposition

In 4273/07, order made for provision in favour of the cross-claimant Nicole Ebert. In 4560/08, Craig Ebert’s summons dismissed with no order as to costs.

Orders

  • ["After payment of parties' legal costs out of the estate and legacies to grandchildren, any balance of the residuary estate is to be paid to Nicole Ebert." 'Craig Ebert’s application for provision under the Family Provision Act dismissed with no order as to costs.']