Peters v Salmon [2013] NSWSC 953

Peters v Salmon [2013] NSWSC 953

Donna was not left without adequate provision because, despite a small legacy and a good relationship with the deceased, she and her husband had their own home, investment property interests, earning capacity and a realistic capacity to make reasonable retirement provision, while Mrs Salmon and Michael had strong competing claims. Kerryn was left without adequate provision because the only provision for her was forgiveness of a $14,000 debt that had already been forgiven, and she was separated from her long-term partner with few assets and little prospect of retaining her home without further provision. Proper provision for Kerryn was $200,000 from Michael's share to enable her to buy out...

Jurisdiction
Australia
Judgment Date
19 July 2013
Procedural Posture
Application by Adult Daughters for Family Provision Orders Under Division 1, Part 3.2 of the Succession Act 2006 (nsw) / Principal Judgment After Hearing
Outcome
First plaintiff's claim dismissed; second plaintiff entitled to family provision of $200,000 on condition that she undertakes not to make any claim under the Succession Act 2006 (NSW) against Mrs Salmon's estate, with final orders and costs to be settled.
Legal Topics
['provision for Adult Children' 'adequacy of Provision Under Succession Act 2006 (nsw) S 59' 'competing Claims of Widow and Son Beneficiary' 'effect of Provision Orders on Viability of Farming Operations']
['succession' 'family Provision'] ['provision for Adult Children' 'adequacy of Provision Under Succession Act 2006 (nsw) S 59' 'competing Claims of Widow and Son Beneficiary' 'effect of Provision Orders on Viability of Farming Operations']

Case Brief

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Procedural Posture

Application by Adult Daughters for Family Provision Orders Under Division 1, Part 3.2 of the Succession Act 2006 (nsw) / Principal Judgment After Hearing

Legal Issues

  1. 1 ["Whether adequate provision for the proper maintenance, education or advancement in life of Donna Maree Peters had not been made by the deceased's will." "Whether adequate provision for the proper maintenance, education or advancement in life of Kerryn Therese Osmond had not been made by the deceased's will." 'What provision, if any, should be made for an adult child where orders may affect the continuing viability of farming operations left to another son.' 'How to weigh the competing claims of Mrs Salmon and Michael against the claims of Donna and Kerryn.']

Ratio Decidendi

Donna was not left without adequate provision because, despite a small legacy and a good relationship with the deceased, she and her husband had their own home, investment property interests, earning capacity and a realistic capacity to make reasonable retirement provision, while Mrs Salmon and Michael had strong competing claims. Kerryn was left without adequate provision because the only provision for her was forgiveness of a $14,000 debt that had already been forgiven, and she was separated from her long-term partner with few assets and little prospect of retaining her home without further provision. Proper provision for Kerryn was $200,000 from Michael's share to enable her to buy out...

Court Disposition

First plaintiff's claim dismissed; second plaintiff entitled to family provision of $200,000 on condition that she undertakes not to make any claim under the Succession Act 2006 (NSW) against Mrs Salmon's estate, with final orders and costs to be settled.

Orders

  • ["The first plaintiff's claim should be dismissed." 'The second plaintiff and the defendants are to have an opportunity to bring in short minutes of order to give effect to the judgment concerning the second plaintiff.' 'Some time should be allowed for Michael to determine how best to satisfy the order, after which...