Aplin & Aplin v Aplin [2011] NSWSC 1409

Aplin & Aplin v Aplin [2011] NSWSC 1409

Each Plaintiff is an eligible person under s 57(1)(c) of the Succession Act 2006. The Will's provision of 10% of the estate per child (approx. $40,000 each) is inadequate for their proper maintenance, education and advancement, having regard to their age, circumstances, future needs and the size of the estate. Therefore, in lieu of the Will's provision, each Plaintiff should receive a lump sum of $110,000 out of the estate, to be paid within 28 days. Costs are to be paid out of the estate as specified.

Parties
First Plaintiff: Josie Cate Aplin by her tutor Jennifer Lisa Aplin; Second Plaintiff: Daniel James Aplin by his tutor Jennifer Lisa Aplin; Defendant: Natasha Fiona Aplin
Jurisdiction
Australia
Judgment Date
19 December 2011
Procedural Posture
Family Provision / Final Judgment
Outcome
Family provision order granted for each Plaintiff; Will varied to provide lump sum.
Legal Topics
Family Provision, Testamentary Provision, Maintenance and Advancement, Eligible Persons, Discretionary Powers, Children's Claims Against Estate
Succession Law Equity Family Provision Testamentary Provision Maintenance and Advancement Eligible Persons Discretionary Powers Children's Claims Against Estate

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 5 Authorities cited 29 Party arguments 2 Amounts and remedies 10
Sign in to unlock

Parties

Josie Cate Aplin by her tutor Jennifer Lisa Aplin

First Plaintiff

Daniel James Aplin by his tutor Jennifer Lisa Aplin

Second Plaintiff

Natasha Fiona Aplin

Defendant

Procedural Posture

Family Provision / Final Judgment

Legal Issues

  1. 1 Whether each Plaintiff is an eligible person under Succession Act 2006
  2. 2 Whether the provision made for the Plaintiffs in the Will of the deceased is adequate for their proper maintenance, education or advancement in life
  3. 3 What provision (if any) should be ordered from the estate for the Plaintiffs

Ratio Decidendi

Each Plaintiff is an eligible person under s 57(1)(c) of the Succession Act 2006. The Will's provision of 10% of the estate per child (approx. $40,000 each) is inadequate for their proper maintenance, education and advancement, having regard to their age, circumstances, future needs and the size of the estate. Therefore, in lieu of the Will's provision, each Plaintiff should receive a lump sum of $110,000 out of the estate, to be paid within 28 days. Costs are to be paid out of the estate as specified.

Court Disposition

Family provision order granted for each Plaintiff; Will varied to provide lump sum.

Orders

  • Each Plaintiff to receive a lump sum of $110,000 from the estate in lieu of the provision in Clause 3 of the Will.
  • Lump sums to be paid within 28 days; if not, interest is payable at the rate prescribed by s 84A(3) of the Probate and Administration Act 1898 from that date until payment.