O’Donnell v O’Donnell [2022] NSWSC 1742

O’Donnell v O’Donnell [2022] NSWSC 1742

The deceased was domiciled in the Australian Capital Territory at the time of death; the NSW Supreme Court lacked jurisdiction to make notional estate orders under Succession Act 2006 (NSW), Pt 3.3. Kalpana O'Donnell, as spouse, was entitled to family provision from the deceased's actual estate (to be paid entirety of the net estate, subject to costs). Claims for further provision, devastavit, or notional estate orders were dismissed; Anna Gray was bound by her previous Family Court settlement and did not establish ground to set aside her release or settlement; her children's or dependent claims did not satisfy eligibility or warranting criteria.

Jurisdiction
Australia
Judgment Date
16 December 2022
Procedural Posture
Consolidated Succession/family Provision/cross Vesting Proceedings / Principal Judgment After Trial
Outcome
Kalpana O'Donnell's ACT family provision application granted (entire actual estate, less costs); all other claims dismissed.
Legal Topics
['domicile Determination' 'family Provision/notional Estate' 'devastavit by Executor' 'variation/setting Aside Property Settlement' 'standing in Devastavit Claims' 'provision for Spouse/partner' 'dependent/household Membership Eligibility' 'rescission of Settlement for Nondisclosure']
['succession Law' 'family Provision' 'private International Law (conflicts of Law)' 'equity'] ['domicile Determination' 'family Provision/notional Estate' 'devastavit by Executor' 'variation/setting Aside Property Settlement' 'standing in Devastavit Claims' 'provision for Spouse/partner' 'dependent/household Membership Eligibility' 'rescission of Settlement for Nondisclosure']

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Procedural Posture

Consolidated Succession/family Provision/cross Vesting Proceedings / Principal Judgment After Trial

Legal Issues

  1. 1 ['Was the deceased domiciled in NSW or the ACT at death for the purposes of family provision law?' 'Is the NSW notional estate regime under Succession Act 2006 (NSW), Pt 3.3 available?' 'Is the applicant spouse entitled to family provision from the estate and/or notional estate?' 'Do Anna Gray or her children qualify for provision?' 'Did the executors commit devastavit by share transfers?' 'Did Anna Gray establish grounds to set aside the property settlement and bar her release from provision claims?']

Ratio Decidendi

The deceased was domiciled in the Australian Capital Territory at the time of death; the NSW Supreme Court lacked jurisdiction to make notional estate orders under Succession Act 2006 (NSW), Pt 3.3. Kalpana O'Donnell, as spouse, was entitled to family provision from the deceased's actual estate (to be paid entirety of the net estate, subject to costs). Claims for further provision, devastavit, or notional estate orders were dismissed; Anna Gray was bound by her previous Family Court settlement and did not establish ground to set aside her release or settlement; her children's or dependent claims did not satisfy eligibility or warranting criteria.

Court Disposition

Kalpana O'Donnell's ACT family provision application granted (entire actual estate, less costs); all other claims dismissed.

Orders

  • ["Kalpana O'Donnell to receive entirety of the deceased's actual estate after payment of costs orders (precise orders to be finalised post further submissions)." "Kalpana's devastavit claim dismissed." "Kalpana's NSW family provision claim dismissed." 'All claims by Anna Gray, Kristina Gray, Jurek Gray dismissed.'...