Mitar v Mitar [2017] NSWSC 647

Mitar v Mitar [2017] NSWSC 647

Adequate provision was not made for the plaintiff under the will, given the change in his circumstances and the acceptance by all parties of such inadequacy. However, the size of the estate, the legitimate competing claims of his siblings (as recognized in a prior settlement), and the need to avoid disproportionate benefit to any one child meant that a family provision order equal to 30% of the net distributable estate (including already distributed amounts) was appropriate to provide adequately for Ante’s needs, while not unduly prejudicing the claims of his siblings. Thus, transfer of the entire family home to Ante was not justified; a substantial, but less than claimed, provision...

Parties
Plaintiff: Ante Mitar; Defendant: Maria Mitar
Jurisdiction
Australia
Judgment Date
26 May 2017
Procedural Posture
Family Provision Application / Judgment After Hearing
Outcome
Plaintiff granted a family provision order for 30% of the value of the estate as determined in the judgment.
Legal Topics
Family Provision, Adequate Provision for Maintenance, Education and Advancement in Life, Distribution of Estate Among Children, Variation of Testamentary Dispositions, Testamentary Freedom, Settlement Between Beneficiaries
Succession Law Equity Family Provision Adequate Provision for Maintenance, Education and Advancement in Life Distribution of Estate Among Children Variation of Testamentary Dispositions Testamentary Freedom Settlement Between Beneficiaries

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Parties

Ante Mitar

Plaintiff

Maria Mitar

Defendant

Procedural Posture

Family Provision Application / Judgment After Hearing

Legal Issues

  1. 1 Whether adequate provision was made for the plaintiff (Ante) for the purposes of s 59(1) of the Succession Act 2006 (NSW)
  2. 2 Appropriate form and quantum of family provision order to be made for the plaintiff in light of competing claims by siblings
  3. 3 Appropriate operation of settlement reached among other siblings

Ratio Decidendi

Adequate provision was not made for the plaintiff under the will, given the change in his circumstances and the acceptance by all parties of such inadequacy. However, the size of the estate, the legitimate competing claims of his siblings (as recognized in a prior settlement), and the need to avoid disproportionate benefit to any one child meant that a family provision order equal to 30% of the net distributable estate (including already distributed amounts) was appropriate to provide adequately for Ante’s needs, while not unduly prejudicing the claims of his siblings. Thus, transfer of the entire family home to Ante was not justified; a substantial, but less than claimed, provision...

Court Disposition

Plaintiff granted a family provision order for 30% of the value of the estate as determined in the judgment.

Orders

  • Plaintiff is to receive a family provision order equal to 30% of the value of the estate of the deceased (as determined in the reasons)
  • Parties to bring in short minutes of order to give effect to the reasons for judgment