Towill v Towill [2024] NSWSC 1384

Towill v Towill [2024] NSWSC 1384

Given the plaintiff's relationship with the deceased akin to mother and son, his acute current and prospective financial need, inadequacy of provision made by the deceased, and lack of resources in the estate, the Court held there are factors warranting and made orders for further provision out of the notional estate, namely one third of the net proceeds of sale of the Woolooware property, the remainder to the defendant, and orders as to costs.

Parties
Plaintiff: Jake Nicholas Towill; Defendant: Nicholas David Towill
Jurisdiction
Australia
Judgment Date
25 October 2024
Procedural Posture
Family Provision Application / Trial and Judgment
Outcome
Order for provision made in plaintiff's favour; proceeds of Woolooware property sale divided one third to plaintiff, two thirds to defendant. Notional estate order. Costs fixed and payable from estate or notional estate. Directions for sale and trust for plaintiff's benefit.
Legal Topics
Family Provision, Testator's Family Maintenance, Notional Estate, Costs, Grandchild Claims, Advancement in Life
Succession Law Equity Family Provision Testator's Family Maintenance Notional Estate Costs Grandchild Claims Advancement in Life

Case Brief

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Parties

Jake Nicholas Towill

Plaintiff

Nicholas David Towill

Defendant

Procedural Posture

Family Provision Application / Trial and Judgment

Legal Issues

  1. 1 Whether the plaintiff, as an adult grandchild, is an eligible person under the Succession Act for a family provision order
  2. 2 Whether there are factors warranting the making of an order for further provision for the plaintiff
  3. 3 Whether adequate provision for the proper maintenance, education or advancement in life of the plaintiff was made by the will or operation of intestacy rules

Ratio Decidendi

Given the plaintiff's relationship with the deceased akin to mother and son, his acute current and prospective financial need, inadequacy of provision made by the deceased, and lack of resources in the estate, the Court held there are factors warranting and made orders for further provision out of the notional estate, namely one third of the net proceeds of sale of the Woolooware property, the remainder to the defendant, and orders as to costs.

Court Disposition

Order for provision made in plaintiff's favour; proceeds of Woolooware property sale divided one third to plaintiff, two thirds to defendant. Notional estate order. Costs fixed and payable from estate or notional estate. Directions for sale and trust for plaintiff's benefit.

Orders

  • Order for provision under Succession Act s 59: one third of net proceeds of Woolooware property sale to the plaintiff, two thirds to the defendant.
  • Woolooware property designated as notional estate.