O’Donnell v O’Donnell (No 2) [2023] NSWSC 1196

O’Donnell v O’Donnell (No 2) [2023] NSWSC 1196

Kalpana O'Donnell was entitled to the whole of the actual residual estate of the deceased pursuant to her ACT family provision claim, as the deceased was found to be domiciled in the ACT. Her NSW-based claim, devastavit claim, and other claims of Anna, Kristina and Jurek all failed. Costs orders reflected these outcomes: Kalpana bears her own costs, the defendants' costs are payable from the estate except for certain unpaid costs, and unsuccessful plaintiffs are apportioned costs according to distinct involvement. Interim distributions to other beneficiaries prior to 16 December 2022 need not be repaid, but amounts distributed after that date must be restored. The Court confirmed the...

Jurisdiction
Australia
Judgment Date
10 October 2023
Procedural Posture
Equity / Family Provision and Associated Claims / Consequential and Final Orders Following Principal Judgment
Outcome
All claims except Kalpana's ACT family provision claim dismissed; Kalpana to receive whole of actual residual estate; interim orders and cost apportionment as detailed
Legal Topics
['family Provision Claims' 'domicile in Succession Law' 'notional Estate' 'administration of Deceased Estates' 'devastavit' 'costs Apportionment in Multi Party Litigation' 'offers of Compromise' 'interim Orders in Estate Claims']
['succession Law' 'family Provision' 'costs' 'equity' 'trusts'] ['family Provision Claims' 'domicile in Succession Law' 'notional Estate' 'administration of Deceased Estates' 'devastavit' 'costs Apportionment in Multi Party Litigation' 'offers of Compromise' 'interim Orders in Estate Claims']

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Procedural Posture

Equity / Family Provision and Associated Claims / Consequential and Final Orders Following Principal Judgment

Legal Issues

  1. 1 ["Whether plaintiff Kalpana O'Donnell should receive provision from the deceased's estate under ACT or NSW law based on domicile" 'Whether claims against executors in devastavit succeed' 'What costs orders should be made given the multiple parties and proceedings' "Whether interim distributions to beneficiaries must be repaid following orders in Kalpana's favour" 'Can beneficiaries who received interim distributions be required to repay to the estate' "Appropriate apportionment of defendants' costs among various unsuccessful plaintiffs"]

Ratio Decidendi

Kalpana O'Donnell was entitled to the whole of the actual residual estate of the deceased pursuant to her ACT family provision claim, as the deceased was found to be domiciled in the ACT. Her NSW-based claim, devastavit claim, and other claims of Anna, Kristina and Jurek all failed. Costs orders reflected these outcomes: Kalpana bears her own costs, the defendants' costs are payable from the estate except for certain unpaid costs, and unsuccessful plaintiffs are apportioned costs according to distinct involvement. Interim distributions to other beneficiaries prior to 16 December 2022 need not be repaid, but amounts distributed after that date must be restored. The Court confirmed the...

Court Disposition

All claims except Kalpana's ACT family provision claim dismissed; Kalpana to receive whole of actual residual estate; interim orders and cost apportionment as detailed

Orders

  • ['Proceedings 2019/120911: dismissed (NSW family provision)' 'Proceedings 2019/363217: order that Kalpana receives by way of provision a legacy equal to all residue of the actual estate; interim provision for Kalpana confirmed; interim distributions to Jamie and Simon before 16 December 2022 retained, those after to...