Bowers v Matthews [2024] NSWSC 1353

Bowers v Matthews [2024] NSWSC 1353

A family provision application under the Succession Act 2006 (NSW) is a personal right that abates upon the applicant's death before judgment, is not transmissible to the estate, and the Court lacks jurisdiction to make a family provision order or enforce a prior settlement for a deceased applicant. The only surviving claim is that of Nicole Bowers, to whom provision and costs are ordered by consent. The executor’s costs are to be paid out of the estate. No specific costs order is made regarding the deceased applicant’s estate. The Court approved settlement and disregarded further service on minor and previously notified eligible persons given their circumstances.

Parties
First Plaintiff: Elaine Marjorie Bowers; Second Plaintiff: Nicole Bowers; Defendant / Applicant: Karyn Edwina Matthews
Jurisdiction
Australia
Judgment Date
31 October 2024
Procedural Posture
Family Provision, Succession – Equity List / Final Judgment After Settlement and Abatement Application
Outcome
First plaintiff's (Elaine Bowers) proceedings dismissed (abated and summary dismissal). Orders by consent for provision to second plaintiff (Nicole Bowers); defendant's costs ordered from the estate.
Legal Topics
Family Provision, Abatement of Proceedings, Costs, Service on Parties Under Incapacity, Eligible Persons, Settlement Approval, Jurisdiction to Award Costs, Statutory Construction, Representation of Deceased Parties
Succession Law Equity Civil Procedure Family Provision Abatement of Proceedings Costs Service on Parties Under Incapacity Eligible Persons +4 more

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Parties

Elaine Marjorie Bowers

First Plaintiff

Nicole Bowers

Second Plaintiff

Karyn Edwina Matthews

Defendant / Applicant

Procedural Posture

Family Provision, Succession – Equity List / Final Judgment After Settlement and Abatement Application

Legal Issues

  1. 1 Whether a family provision application abates on death of applicant under Succession Act 2006 (NSW)
  2. 2 Jurisdiction to enforce settlement after applicant’s death
  3. 3 Jurisdiction to award costs in abated family provision proceedings

Ratio Decidendi

A family provision application under the Succession Act 2006 (NSW) is a personal right that abates upon the applicant's death before judgment, is not transmissible to the estate, and the Court lacks jurisdiction to make a family provision order or enforce a prior settlement for a deceased applicant. The only surviving claim is that of Nicole Bowers, to whom provision and costs are ordered by consent. The executor’s costs are to be paid out of the estate. No specific costs order is made regarding the deceased applicant’s estate. The Court approved settlement and disregarded further service on minor and previously notified eligible persons given their circumstances.

Court Disposition

First plaintiff's (Elaine Bowers) proceedings dismissed (abated and summary dismissal). Orders by consent for provision to second plaintiff (Nicole Bowers); defendant's costs ordered from the estate.

Orders

  • Proceedings affecting Elaine Marjorie Bowers dealt with in absence of estate representative for limited purposes (UCPR r 7.10(2)(a))
  • Proceedings by Elaine Marjorie Bowers dismissed (UCPR r 13.4(b)).