Ovens v Ovens; The Estate of the late May Enid Ovens [2020] NSWSC 568

Ovens v Ovens; The Estate of the late May Enid Ovens [2020] NSWSC 568

The plaintiff failed to establish that the Will left him without adequate provision because his testamentary entitlement was sufficient to buy reasonably priced accommodation in Panama City and leave a modest fund for maintenance or a photography business. In any event, Annandale 3 would not be designated as notional estate: Penelope was joined about eight months out of time without sufficient cause for an extension; the plaintiff did not prove that the deceased transferred Annandale 3 with the intention of denying or limiting provision from her estate; and a notional estate order would interfere with Grant and Penelope's reasonable expectations arising from their ownership, renovation...

Jurisdiction
Australia
Judgment Date
15 May 2020
Procedural Posture
Family Provision Proceedings Under Succession Act 2006, Chapter 3, Including Application for Notional Estate Order / Principal Judgment After Hearing
Outcome
The plaintiff's claim was dismissed against both defendants. No notional estate order was made and no further provision was ordered.
Legal Topics
['family Provision' 'adequate Provision for Proper Maintenance, Education or Advancement in Life' 'notional Estate' 'out of Time Application' 'special Circumstances' 'reasonable Expectations in Relation to Property' 'costs']
['succession' 'equity'] ['family Provision' 'adequate Provision for Proper Maintenance, Education or Advancement in Life' 'notional Estate' 'out of Time Application' 'special Circumstances' 'reasonable Expectations in Relation to Property' 'costs']

Case Brief

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Procedural Posture

Family Provision Proceedings Under Succession Act 2006, Chapter 3, Including Application for Notional Estate Order / Principal Judgment After Hearing

Legal Issues

  1. 1 ["Whether the plaintiff had been left without adequate provision from the deceased's estate for his proper maintenance, education or advancement in life." 'Whether Annandale 3 should be designated as notional estate of the deceased.' 'Whether the notional estate application against the second defendant was out of time and whether sufficient cause was shown to extend time.' 'Whether Succession Act 2006, s 90 required proof of other special circumstances for the notional estate order.' 'Whether the deceased entered into the transfer of Annandale 3 with the intention, wholly or partly, of denying or limiting provision being made out of her estate.' "Whether a notional estate order would interfere with the first and second defendants' reasonable expectations in relation to Annandale 3." 'What costs orders should be made.']

Ratio Decidendi

The plaintiff failed to establish that the Will left him without adequate provision because his testamentary entitlement was sufficient to buy reasonably priced accommodation in Panama City and leave a modest fund for maintenance or a photography business. In any event, Annandale 3 would not be designated as notional estate: Penelope was joined about eight months out of time without sufficient cause for an extension; the plaintiff did not prove that the deceased transferred Annandale 3 with the intention of denying or limiting provision from her estate; and a notional estate order would interfere with Grant and Penelope's reasonable expectations arising from their ownership, renovation...

Court Disposition

The plaintiff's claim was dismissed against both defendants. No notional estate order was made and no further provision was ordered.

Orders

  • ["The plaintiff's claim is dismissed as against both the first and second defendants." "Order that the defendants' costs, which may not be recovered in an amount exceeding the sum of $47,000, shall be paid out of the estate of the deceased, the late May Enid Ovens, on the indemnity basis." "Order that the burden...