Cahn v Kosmin [2022] NSWSC 751

Cahn v Kosmin [2022] NSWSC 751

Although Tracy had already received very substantial inter vivos and testamentary provision, including long-term rent-free occupation and the 2008 gift of the Ocean Avenue unit and an estimated entitlement of about $1.215 million under the Will, the Court was satisfied on balance that adequate provision had not been made because she had a genuine need for suitable accommodation and some buffer for contingencies after her financial resources were depleted. However, the additional provision was limited because her evidence about income, expenditure and financial resources was unreliable or incomplete, several claimed needs were unsupported or contingent, and the interests of Stewart and the...

Jurisdiction
Australia
Judgment Date
08 June 2022
Procedural Posture
Family Provision Proceedings Relating to the Estate of Lilliane Sarah Cahn / Principal Judgment After Hearing on Plaintiff's Claim for Additional Provision
Outcome
Additional provision awarded; parties to address the question of costs.
Legal Topics
['family Provision' 'eligible Person Adult Child' 'adequacy of Testamentary Provision' 'inter Vivos Provision' 'financial Resources and Needs' 'testamentary Intentions' 'costs Reserved']
['succession' 'equity'] ['family Provision' 'eligible Person Adult Child' 'adequacy of Testamentary Provision' 'inter Vivos Provision' 'financial Resources and Needs' 'testamentary Intentions' 'costs Reserved']

Case Brief

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Procedural Posture

Family Provision Proceedings Relating to the Estate of Lilliane Sarah Cahn / Principal Judgment After Hearing on Plaintiff's Claim for Additional Provision

Legal Issues

  1. 1 ["Whether the provision made for Tracy Faye Cahn under the deceased's Will was adequate for her proper maintenance, education or advancement in life." "If adequate provision had not been made, what family provision order should be made out of the deceased's estate." "How to weigh substantial inter vivos and testamentary provision, the plaintiff's depleted resources after bankruptcy, her financial disclosure, her accommodation needs, and the interests of the second defendant beneficiary."]

Ratio Decidendi

Although Tracy had already received very substantial inter vivos and testamentary provision, including long-term rent-free occupation and the 2008 gift of the Ocean Avenue unit and an estimated entitlement of about $1.215 million under the Will, the Court was satisfied on balance that adequate provision had not been made because she had a genuine need for suitable accommodation and some buffer for contingencies after her financial resources were depleted. However, the additional provision was limited because her evidence about income, expenditure and financial resources was unreliable or incomplete, several claimed needs were unsupported or contingent, and the interests of Stewart and the...

Court Disposition

Additional provision awarded; parties to address the question of costs.

Orders

  • ['In lieu of provision given to Tracy under the Will of the deceased that she should receive a legacy of $1.45 million from the net proceeds of the sale of the Dumaresq units to the intent that Stewart should receive the balance of the net proceeds of the sale of the Dumaresq units.' 'The matter is stood over to...