Nielsen v Kongspark [2019] NSWSC 1821

Nielsen v Kongspark [2019] NSWSC 1821

The plaintiff failed to establish that the will of the mother did not make adequate provision for his proper maintenance or advancement in life, having regard to his estrangement of many years, his lack of contribution or close relationship, the modest size of the estate, the stronger claim of the defendant who lived with and cared for the deceased, and the absence of 'special circumstances' to justify a notional estate order. Even if the jurisdictional threshold were met, the court would exercise its discretion not to make provision or designate a notional estate.

Parties
Plaintiff: Ole Nielsen; Defendant: John Kongspark
Jurisdiction
Australia
Judgment Date
18 December 2019
Procedural Posture
Family Provision Application / Final Judgment After Trial
Outcome
Plaintiff's Summons dismissed
Legal Topics
Family Provision, Will and Estates, Notional Estate, Extension of Time, Estrangement
Succession Law Equity Family Provision Will and Estates Notional Estate Extension of Time Estrangement

Case Brief

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Parties

Ole Nielsen

Plaintiff

John Kongspark

Defendant

Procedural Posture

Family Provision Application / Final Judgment After Trial

Legal Issues

  1. 1 Whether adequate provision was made for the plaintiff under the will of the deceased mother
  2. 2 Whether an order for family provision should be made in favour of the plaintiff
  3. 3 Whether time should be extended to allow an out-of-time family provision application under s 58(2) Succession Act 2006 (NSW)

Ratio Decidendi

The plaintiff failed to establish that the will of the mother did not make adequate provision for his proper maintenance or advancement in life, having regard to his estrangement of many years, his lack of contribution or close relationship, the modest size of the estate, the stronger claim of the defendant who lived with and cared for the deceased, and the absence of 'special circumstances' to justify a notional estate order. Even if the jurisdictional threshold were met, the court would exercise its discretion not to make provision or designate a notional estate.

Court Disposition

Plaintiff's Summons dismissed

Orders

  • Plaintiff's Summons be dismissed
  • The Court will hear the parties on the question of costs if not agreed, on a date to be fixed