Oldereid v Chan [2013] NSWSC 434

Oldereid v Chan [2013] NSWSC 434

Thore was not entitled to further provision because, considering his and his wife's financial position, assets, income, the $100,000 legacy available to him, prior generosity from his parents, the size of the estate and Martin's stronger needs, the Court was not satisfied that he had been left without adequate provision. Martin was entitled to further provision because he and his wife had faced significant hardship, had a substantial mortgage, two dependent children, no savings apart from superannuation, expenses exceeding income, and his wife was unlikely to work; a further lump sum of $300,000 would put him on a more secure financial footing by substantially reducing his mortgage.

Jurisdiction
Australia
Judgment Date
29 April 2013
Procedural Posture
Application for Family Provision Orders Under Division 1 of Part 3.2 of the Succession Act 2006 (nsw) / Principal Judgment After Hearing
Outcome
First plaintiff awarded further provision; second plaintiff's claim dismissed; costs stood over if not agreed.
Legal Topics
['family Provision' 'adult Children' 'adequate Provision for Proper Maintenance, Education or Advancement in Life' 'succession Act 2006 (nsw) Ss 59 and 60']
['succession Law'] ['family Provision' 'adult Children' 'adequate Provision for Proper Maintenance, Education or Advancement in Life' 'succession Act 2006 (nsw) Ss 59 and 60']

Case Brief

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Procedural Posture

Application for Family Provision Orders Under Division 1 of Part 3.2 of the Succession Act 2006 (nsw) / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether Thore Hans Oldereid had been left without adequate provision for his proper maintenance, education or advancement in life.' 'Whether Martin Grieg Oldereid had been left without adequate provision for his proper maintenance, education or advancement in life.' "What further provision, if any, should be made from the deceased's estate."]

Ratio Decidendi

Thore was not entitled to further provision because, considering his and his wife's financial position, assets, income, the $100,000 legacy available to him, prior generosity from his parents, the size of the estate and Martin's stronger needs, the Court was not satisfied that he had been left without adequate provision. Martin was entitled to further provision because he and his wife had faced significant hardship, had a substantial mortgage, two dependent children, no savings apart from superannuation, expenses exceeding income, and his wife was unlikely to work; a further lump sum of $300,000 would put him on a more secure financial footing by substantially reducing his mortgage.

Court Disposition

First plaintiff awarded further provision; second plaintiff's claim dismissed; costs stood over if not agreed.

Orders

  • ['Order that the first plaintiff receive, in addition to the legacy left to him by the deceased, a lump sum of $300,000.' 'Order that no interest is to be paid on the lump sum if that lump sum is paid within 14 days of the making of these orders; otherwise, interest calculated at the rate prescribed by s 84A(3) of...