Gray v Mather [2016] NSWSC 699

Gray v Mather [2016] NSWSC 699

Adequate provision was not made for the Plaintiff by the Will. Having considered the size of the (notional) estate, the relationship between the parties, their relative needs and the deceased's testamentary intentions, provision for the Plaintiff in the sum of $150,000 out of notional estate (by way of money held in a term deposit/bank account) is warranted. The deceased's actual estate is insufficient, but property in the Defendant's hands can be designated as notional estate for this sum. No order is made against the real property (Yass property). The sum is to be paid from designated notional estate. Final orders as to costs, interest and precise bank account to be determined after...

Jurisdiction
Australia
Judgment Date
02 June 2016
Procedural Posture
Family Provision Application Under Succession Act 2006 (nsw) / Judgment After Hearing
Outcome
Proceedings stood over for argument as to costs and for making of orders in favour of the Plaintiff; Plaintiff held eligible and entitled to provision of $150,000 out of notional estate, by way of designation of appropriate bank account/term deposit as notional estate; Defendant to identify the bank account; further...
Legal Topics
['family Provision Orders' 'notional Estate' 'testamentary Freedom' 'adult Child Claims']
['succession Law' 'equity'] ['family Provision Orders' 'notional Estate' 'testamentary Freedom' 'adult Child Claims']

Case Brief

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Procedural Posture

Family Provision Application Under Succession Act 2006 (nsw) / Judgment After Hearing

Legal Issues

  1. 1 ["Whether adequate provision was made for the Plaintiff's proper maintenance or advancement in life under the Will of the deceased" 'Whether a family provision order should be made in favour of the Plaintiff' 'Whether property should be designated as notional estate to satisfy the order']

Ratio Decidendi

Adequate provision was not made for the Plaintiff by the Will. Having considered the size of the (notional) estate, the relationship between the parties, their relative needs and the deceased's testamentary intentions, provision for the Plaintiff in the sum of $150,000 out of notional estate (by way of money held in a term deposit/bank account) is warranted. The deceased's actual estate is insufficient, but property in the Defendant's hands can be designated as notional estate for this sum. No order is made against the real property (Yass property). The sum is to be paid from designated notional estate. Final orders as to costs, interest and precise bank account to be determined after...

Court Disposition

Proceedings stood over for argument as to costs and for making of orders in favour of the Plaintiff; Plaintiff held eligible and entitled to provision of $150,000 out of notional estate, by way of designation of appropriate bank account/term deposit as notional estate; Defendant to identify the bank account; further...

Orders

  • ['The Plaintiff, as eligible person, to receive provision of $150,000 out of notional estate of the deceased.' 'The Defendant to identify the bank account or term deposit to be designated as notional estate for payment of the legacy, any interest and any costs ordered.' 'Interest to accrue at the rate prescribed by...