Annette Carol Gillett v Virginia Nelson (No. 2) [2014] NSWSC 580

Annette Carol Gillett v Virginia Nelson (No. 2) [2014] NSWSC 580

The Court held the gifts of shares were effective and did not form part of Mr Nelson's estate upon death, as he had done everything necessary to effect the transfer; the transactions were not made with the intention of denying or limiting provision out of the estate under s 80(2)(a) of the Act. Although the estate was small, the will did not make adequate provision for the plaintiff's maintenance and advancement. A lump sum legacy and costs were ordered out of the remaining and/or notional estate.

Parties
Plaintiff: Annette Carol Gillett; First Defendant: Virginia Nelson; Second Defendant: Peter Andrew Stiles; Third Defendant: Bryan Guersant Mellon; Fourth Defendant: Naringtan Pty Ltd
Jurisdiction
Australia
Judgment Date
19 May 2014
Procedural Posture
Family Provision—succession / Final Judgment at First Instance
Outcome
Family provision order made in favour of plaintiff; plaintiff to receive a lump sum legacy plus costs, with notional estate orders as appropriate.
Legal Topics
Family Provision, Notional Estate, Property Transactions, Adequate Provision, Estate Administration
Succession Law Equity Family Provision Notional Estate Property Transactions Adequate Provision Estate Administration

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Parties

Annette Carol Gillett

Plaintiff

Virginia Nelson

First Defendant

Peter Andrew Stiles

Second Defendant

Bryan Guersant Mellon

Third Defendant

Naringtan Pty Ltd

Fourth Defendant

Procedural Posture

Family Provision—succession / Final Judgment at First Instance

Legal Issues

  1. 1 Whether gifts of shares were incomplete so that shares form part of estate
  2. 2 Whether gifts were relevant property transactions under Succession Act 2006 (NSW) s 80(2)(a)
  3. 3 Whether adequate provision made for the plaintiff out of the estate

Ratio Decidendi

The Court held the gifts of shares were effective and did not form part of Mr Nelson's estate upon death, as he had done everything necessary to effect the transfer; the transactions were not made with the intention of denying or limiting provision out of the estate under s 80(2)(a) of the Act. Although the estate was small, the will did not make adequate provision for the plaintiff's maintenance and advancement. A lump sum legacy and costs were ordered out of the remaining and/or notional estate.

Court Disposition

Family provision order made in favour of plaintiff; plaintiff to receive a lump sum legacy plus costs, with notional estate orders as appropriate.

Orders

  • The plaintiff is to receive a lump sum legacy of $175,000 out of the estate or notional estate of the late Arthur Vincent Nelson.
  • The plaintiff's costs are to be paid out of the balance of the estate or notional estate after payment of the legacy and the defendants' costs.