Alison Jayne Gill and 2 Ors v Carolyn Smith [2007] NSWSC 832

Alison Jayne Gill and 2 Ors v Carolyn Smith [2007] NSWSC 832

Each plaintiff was an eligible person and had been left without adequate provision because the deceased's post-will transactions left no practical estate for the testamentary benefits he had intended for his children. The alteration of title to the Cromer property, the superannuation transactions and the share proceeds transactions were prescribed transactions within section 23 of the Family Provision Act 1982, and the deceased's moral obligation to his three infant children was substantially greater than any obligation to effect the transfer for the defendant. Because the estate was insufficient and the statutory factors in sections 27 and 28 were satisfied, the Cromer property was...

Jurisdiction
Australia
Judgment Date
01 August 2007
Procedural Posture
Proceedings Under the Family Provision Act 1982 for Provision Out of the Estate And/or Notional Estate of the Deceased / Final Judgment After Hearing
Outcome
Orders made for each plaintiff to receive a $100,000 legacy from the notional estate; Cromer property designated as notional estate to that extent; defendant to pay plaintiffs' capped costs.
Legal Topics
['claim by Infant Children' 'adequate Provision for Maintenance, Education and Advancement in Life' 'notional Estate' 'prescribed Transactions' 'capping Order for Costs' 'affidavit Evidence']
['succession' 'family Provision' 'practice and Procedure' 'costs'] ['claim by Infant Children' 'adequate Provision for Maintenance, Education and Advancement in Life' 'notional Estate' 'prescribed Transactions' 'capping Order for Costs' 'affidavit Evidence']

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Procedural Posture

Proceedings Under the Family Provision Act 1982 for Provision Out of the Estate And/or Notional Estate of the Deceased / Final Judgment After Hearing

Legal Issues

  1. 1 ['Whether the plaintiffs, as infant children of the deceased, had been left without adequate provision for their proper maintenance, education and advancement in life.' "Whether transactions by which the deceased's interest in the Cromer property, superannuation entitlements and share proceeds passed to the defendant justified designation of property as notional estate under Part II, Division 2 of the Family Provision Act 1982." "Whether the defendant's competing circumstances and expectations should prevent or limit a notional estate order." 'Whether costs should be capped because excessive and irrelevant affidavit evidence inflated the costs of the proceedings.']

Ratio Decidendi

Each plaintiff was an eligible person and had been left without adequate provision because the deceased's post-will transactions left no practical estate for the testamentary benefits he had intended for his children. The alteration of title to the Cromer property, the superannuation transactions and the share proceeds transactions were prescribed transactions within section 23 of the Family Provision Act 1982, and the deceased's moral obligation to his three infant children was substantially greater than any obligation to effect the transfer for the defendant. Because the estate was insufficient and the statutory factors in sections 27 and 28 were satisfied, the Cromer property was...

Court Disposition

Orders made for each plaintiff to receive a $100,000 legacy from the notional estate; Cromer property designated as notional estate to that extent; defendant to pay plaintiffs' capped costs.

Orders

  • ['Each Plaintiff receive from the notional estate of the late Michael John Gill a legacy in the sum of $100,000, each such legacy not to bear interest if paid on or before 1 September 2007, and if not so paid, to bear interest at the rates prescribed for unpaid legacies by the Wills, Probate and Administration Act...