KD v BS [2022] NSWSC 887

KD v BS [2022] NSWSC 887

The Court found that while the deceased deliberately excluded the plaintiff from her will for identified reasons, the plaintiff's financial circumstances and the vindication to some extent of her concerns in earlier proceedings meant that adequate provision had not been made for her. A modest provision of $60,000 from the estate, plus a cap of $40,000 on her recoverable costs, was considered proper in the circumstances.

Parties
Plaintiff: KD; First Defendant: BS; Second Defendant: CC
Jurisdiction
Australia
Judgment Date
05 July 2022
Procedural Posture
Family Provision Application / Judgment
Outcome
Provision made for plaintiff from deceased's estate in the sum of $60,000. Plaintiff's costs capped at $40,000 to be paid from estate.
Legal Topics
Family Provision, Testator's Intent, Adequate Provision, Small Estate, Claim by Adult Child
Succession Law Equity Family Provision Testator's Intent Adequate Provision Small Estate Claim by Adult Child

Case Brief

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Parties

KD

Plaintiff

BS

First Defendant

CC

Second Defendant

Procedural Posture

Family Provision Application / Judgment

Legal Issues

  1. 1 Whether the deceased made adequate provision for the plaintiff under s 59 of the Succession Act 2006 (NSW)
  2. 2 What, if any, provision ought to be made for the plaintiff from the deceased's estate

Ratio Decidendi

The Court found that while the deceased deliberately excluded the plaintiff from her will for identified reasons, the plaintiff's financial circumstances and the vindication to some extent of her concerns in earlier proceedings meant that adequate provision had not been made for her. A modest provision of $60,000 from the estate, plus a cap of $40,000 on her recoverable costs, was considered proper in the circumstances.

Court Disposition

Provision made for plaintiff from deceased's estate in the sum of $60,000. Plaintiff's costs capped at $40,000 to be paid from estate.

Orders

  • Provision made for the plaintiff from the deceased's estate in the sum of $60,000.
  • Plaintiff's costs, capped at $40,000, to be paid from the estate.