Thierry v Predny [2023] NSWSC 1075

Thierry v Predny [2023] NSWSC 1075

Provision made for Rebecca Thierry by the will was inadequate given her circumstances and the moral obligation of the deceased; payments to Robert ($300,000) and funds withdrawn by him ($44,325.46) constitute relevant property transactions and should be designated as notional estate. Family provision order made for Rebecca to the extent that restores parity she would have had absent those transactions, with judgment for recovery of misappropriated funds on the cross-claim.

Parties
Plaintiff: Rebecca Morva Thierry; First Defendant / Cross Claimant: David Milan Predny; Second Defendant / Cross Defendant: Robert Frances Grainger
Jurisdiction
Australia
Judgment Date
06 September 2023
Procedural Posture
Family Provision Application and Cross Claim / Judgment After Hearing
Outcome
Family provision order made for the plaintiff; judgment for first defendant/cross-claimant against second defendant/cross-defendant on the cross-claim; designation of notional estate.
Legal Topics
Family Provision, Notional Estate, Testamentary Intentions
Succession Equity Family Provision Notional Estate Testamentary Intentions

Case Brief

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Parties

Rebecca Morva Thierry

Plaintiff

David Milan Predny

First Defendant / Cross Claimant

Robert Frances Grainger

Second Defendant / Cross Defendant

Procedural Posture

Family Provision Application and Cross Claim / Judgment After Hearing

Legal Issues

  1. 1 Whether adequate provision was made for the maintenance and advancement in life of the plaintiff, Rebecca Morva Thierry, under the will of her late mother
  2. 2 Whether certain payments to the second defendant and withdrawals from the deceased's bank accounts should be designated as notional estate
  3. 3 Whether judgment should be entered on the cross-claim for funds improperly taken from the estate

Ratio Decidendi

Provision made for Rebecca Thierry by the will was inadequate given her circumstances and the moral obligation of the deceased; payments to Robert ($300,000) and funds withdrawn by him ($44,325.46) constitute relevant property transactions and should be designated as notional estate. Family provision order made for Rebecca to the extent that restores parity she would have had absent those transactions, with judgment for recovery of misappropriated funds on the cross-claim.

Court Disposition

Family provision order made for the plaintiff; judgment for first defendant/cross-claimant against second defendant/cross-defendant on the cross-claim; designation of notional estate.

Orders

  • Orders pursuant to r 10.14(3) of the Uniform Civil Procedure Rules 2005 (NSW), deeming service effective on 24 May 2023.
  • Judgment for the first defendant/cross-claimant on the First Cross-Claim against the second defendant/cross-defendant for $44,325.46.