Bracher v Jones (No 2) [2022] NSWSC 134

Bracher v Jones (No 2) [2022] NSWSC 134

Stephen Alan Jones’s application for further family provision was dismissed for lack of merit, as the 2010 will equally favored both children whose personal and financial circumstances were comparable, and testamentary intention should not be disturbed absent good cause. Diane was granted indemnity costs from 8 June 2018 due to Stephen’s unreasonable refusal to accept a Calderbank offer. The administrator was directed to provide a report on estate debts/claims, and further directions may be made following that report.

Parties
Plaintiff: Diane Kay Bracher; First Defendant: Stephen Alan Jones; Second Defendant: Benjamin Stephen Jones
Jurisdiction
Australia
Judgment Date
18 February 2022
Procedural Posture
Succession and Family Provision Proceedings / Post Trial, Judgment and Final Orders
Outcome
Application for further family provision by Stephen Alan Jones dismissed; Diane’s family provision application also dismissed; costs orders made.
Legal Topics
Family Provision, Probate, Testamentary Capacity, Undue Influence, Costs (party/party, Indemnity)
Succession Law Equity Family Provision Probate Testamentary Capacity Undue Influence Costs (party/party, Indemnity)

Case Brief

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Parties

Diane Kay Bracher

Plaintiff

Stephen Alan Jones

First Defendant

Benjamin Stephen Jones

Second Defendant

Procedural Posture

Succession and Family Provision Proceedings / Post Trial, Judgment and Final Orders

Legal Issues

  1. 1 Whether leave should be granted for an out-of-time family provision application under s 58 Succession Act 2006 (NSW)
  2. 2 Whether further family provision should be made under s 59 Succession Act 2006 (NSW)
  3. 3 Whether the 19 June 2013 will of Leila Jean Jones was invalid for lack of testamentary capacity and/or undue influence

Ratio Decidendi

Stephen Alan Jones’s application for further family provision was dismissed for lack of merit, as the 2010 will equally favored both children whose personal and financial circumstances were comparable, and testamentary intention should not be disturbed absent good cause. Diane was granted indemnity costs from 8 June 2018 due to Stephen’s unreasonable refusal to accept a Calderbank offer. The administrator was directed to provide a report on estate debts/claims, and further directions may be made following that report.

Court Disposition

Application for further family provision by Stephen Alan Jones dismissed; Diane’s family provision application also dismissed; costs orders made.

Orders

  • Grant leave to the estate administrator to provide a report on all debts/claims potentially payable by beneficiaries.
  • Permit parties to relist after the administrator’s report to address liability for estate debts.