Hildebrandt v Soncini [2007] NSWSC 1227

Hildebrandt v Soncini [2007] NSWSC 1227

The court found that the deceased's transfer of her property to the defendant fell within s 23(b)(ii) of the Family Provision Act 1982 (NSW) because, at the time of the transaction, the deceased owed a substantially greater moral obligation to provide for her son, the plaintiff, than to make the transfer. Consequently, part of the proceeds of sale was designated notional estate, and a legacy was ordered in favour of the plaintiff.

Jurisdiction
Australia
Judgment Date
14 December 2007
Procedural Posture
Family Provision Application / Judgment After Hearing
Outcome
Application granted in part; orders made for provision from notional estate.
Legal Topics
['family Provision' 'notional Estate' 'testamentary Intent' 'moral Obligation']
['succession Law' 'equity'] ['family Provision' 'notional Estate' 'testamentary Intent' 'moral Obligation']

Case Brief

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Procedural Posture

Family Provision Application / Judgment After Hearing

Legal Issues

  1. 1 ['Whether a family provision order should be made in favour of the plaintiff under the Family Provision Act 1982 (NSW)' "Whether the property transferred to the defendant shortly before the deceased's death can be designated as notional estate under s 23 of the Family Provision Act 1982 (NSW)" 'Assessment of the moral obligations owed by the deceased to the plaintiff and the defendant']

Ratio Decidendi

The court found that the deceased's transfer of her property to the defendant fell within s 23(b)(ii) of the Family Provision Act 1982 (NSW) because, at the time of the transaction, the deceased owed a substantially greater moral obligation to provide for her son, the plaintiff, than to make the transfer. Consequently, part of the proceeds of sale was designated notional estate, and a legacy was ordered in favour of the plaintiff.

Court Disposition

Application granted in part; orders made for provision from notional estate.

Orders

  • ['Plaintiff to receive a legacy of $100,000.' 'Interest payable on the legacy if not paid within 1 month at the statutory rate.' "Plaintiff's costs on party and party basis, defendant's costs on an indemnity basis to be paid from notional estate." '$210,000 from the proceeds of sale of 28 Oxford Street, Blacktown...