Koellner v Spicer [2019] NSWSC 1571

Koellner v Spicer [2019] NSWSC 1571

The plaintiff had not been adequately provided for by the will of the deceased. Having regard to his financial circumstances, ongoing disabilities, age, lack of financial security and debt, and the modest but not insignificant estate, proper provision required that he receive a lump sum of 35% of the net value of the estate after sale and deduction of liabilities and costs. The quantum recognised the limited relationship with the deceased and weighed the testator's intentions, but found the circumstances warranted provision.

Parties
Plaintiff: Daniel Koellner; Defendant: Scott Spicer
Jurisdiction
Australia
Judgment Date
14 November 2019
Procedural Posture
Family Provision Act/succession Application / Principal Judgment Following Final Hearing
Outcome
Order for provision in favour of the plaintiff; quantum set at 35% of net estate after sale and deduction of debts, funeral and testamentary expenses, and costs. Balance to the defendant. Orders to be further refined following receipt of agreed short minutes and dealing with costs.
Legal Topics
Family Provision Claim, Testator's Intentions, Adult Child Claim, Disability and Provision, Small Estate, Contest With Sole Beneficiary, Clause in Will Excluding Applicant
Succession Equity Family Provision Claim Testator's Intentions Adult Child Claim Disability and Provision Small Estate Contest With Sole Beneficiary +1 more

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Parties

Daniel Koellner

Plaintiff

Scott Spicer

Defendant

Procedural Posture

Family Provision Act/succession Application / Principal Judgment Following Final Hearing

Legal Issues

  1. 1 Whether adequate provision for proper maintenance, education or advancement in life had not been made for the plaintiff by the will of the deceased
  2. 2 Whether an order for provision should be made for the plaintiff, and, if so, the nature and quantum of provision to be made
  3. 3 Consideration of the reasons given in the will for excluding the plaintiff

Ratio Decidendi

The plaintiff had not been adequately provided for by the will of the deceased. Having regard to his financial circumstances, ongoing disabilities, age, lack of financial security and debt, and the modest but not insignificant estate, proper provision required that he receive a lump sum of 35% of the net value of the estate after sale and deduction of liabilities and costs. The quantum recognised the limited relationship with the deceased and weighed the testator's intentions, but found the circumstances warranted provision.

Court Disposition

Order for provision in favour of the plaintiff; quantum set at 35% of net estate after sale and deduction of debts, funeral and testamentary expenses, and costs. Balance to the defendant. Orders to be further refined following receipt of agreed short minutes and dealing with costs.

Orders

  • Plaintiff to receive lump sum equivalent to 35 percent of net estate as calculated after sale of Albion Park Rail property and payment of liabilities and costs.
  • Defendant to receive 65 percent of net estate, subject to payment of provision to Plaintiff.