Michael John Askew v John Paul Askew [2015] NSWSC 192

Michael John Askew v John Paul Askew [2015] NSWSC 192

The will of Minna Olive Askew did not make adequate provision for the plaintiff, her adult son, under s 59 of the Succession Act 2006 (NSW) given his disabled status, poor financial circumstances, and absence of disentitling conduct. The estate's net value was $597,000 (reduced to $521,000 after plaintiff's costs). The Court determined that a provision of $150,000 (or 30% of the net estate) to the plaintiff was appropriate, balancing the needs of the plaintiff with the interests and circumstances of the defendant, the size of the estate, and the deceased's intentions. No costs capping order was made. If the provision cannot be paid without sale of the property, the same percentage applies...

Parties
Plaintiff: Michael John Askew; Defendant: John Paul Askew
Jurisdiction
Australia
Judgment Date
04 March 2015
Procedural Posture
Family Provision Claim / Succession / Final Judgment at First Instance
Outcome
Claim for provision succeeds in part; orders for specific legacy/percentage to plaintiff; no costs cap.
Legal Topics
Family Provision, Testamentary Capacity, Right to Reside, Disentitling Conduct, Adequate Provision, Distribution of Estate, Costs Capping, Net Value of Estate
Equity Succession Law Family Provision Testamentary Capacity Right to Reside Disentitling Conduct Adequate Provision Distribution of Estate +2 more

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Parties

Michael John Askew

Plaintiff

John Paul Askew

Defendant

Procedural Posture

Family Provision Claim / Succession / Final Judgment at First Instance

Legal Issues

  1. 1 Whether the will failed to make adequate provision for the proper maintenance and advancement in life of the plaintiff under s 59 Succession Act 2006 (NSW)
  2. 2 Whether the plaintiff engaged in disentitling conduct
  3. 3 How the net estate should be valued, including treatment of property defects, debts, and any life interest or right to reside

Ratio Decidendi

The will of Minna Olive Askew did not make adequate provision for the plaintiff, her adult son, under s 59 of the Succession Act 2006 (NSW) given his disabled status, poor financial circumstances, and absence of disentitling conduct. The estate's net value was $597,000 (reduced to $521,000 after plaintiff's costs). The Court determined that a provision of $150,000 (or 30% of the net estate) to the plaintiff was appropriate, balancing the needs of the plaintiff with the interests and circumstances of the defendant, the size of the estate, and the deceased's intentions. No costs capping order was made. If the provision cannot be paid without sale of the property, the same percentage applies...

Court Disposition

Claim for provision succeeds in part; orders for specific legacy/percentage to plaintiff; no costs cap.

Orders

  • Plaintiff to receive a provision of $150,000, or if required sale, 30% of net estate proceeds after costs and debts.
  • Defendant to pay provision to plaintiff within two months or property to be sold with plaintiff to receive 30% as above.