Grant v Grant [2020] NSWSC 760

Supreme Court New South Wales

Medium Neutral Citation: Grant v Grant [2020] NSWSC 760 Hearing dates: 4, 5 and 6 May 2020 Date of orders: 19 June 2020 Decision date: 05 June 2020 Jurisdiction: Equity - Family Provision List Before: Rein J Decision: See [40]-[41], [44] and [46] Catchwords: SUCCESSION – Family provision – Claim by adult child of the Deceased – Whether inadequate and proper provision made for the plaintiff and, if so, the nature and quantum of the provision to be made – Plaintiff brought a family provision claim against her deceased mother's estate, the estate being represented by the defendant (the mother's son and brother of the plaintiff) as executor – The will did not make any provision for the plaintiff because the testatrix had already given to the plaintiff during her lifetime an amount roughly equal to what the will would provide to the other two adult children; in addition, the testatrix considered in her will that the plaintiff owed the estate several hundred thousand dollars in unpaid loans – Plaintiff discontinued her family provision claim during the hearing.

EQUITY – Unconscionable conduct – Special disability or disadvantage – Whether unconscientious advantage taken – Cross claim by deceased estate for recovery of unpaid loans from adult child of the testatrix – Between 2012-2015 the testatrix transferred $931,720 to the plaintiff and her de facto husband (together, "the cross defendants"), of which $190,000 was repaid in 2013 – The testatrix by her will expressed an intention to treat $380,000 of the transfers as gifts, with the remaining $361,020 as unpaid loans due to the estate – The defendant cross claimed against the cross defendants for the $361,020 – The various transfers were made for purposes of assisting the cross defendants to purchase land and construct a house in Paterson NSW in which the testatrix was also to be accommodated for the remaining years of her life – Where the testatrix was not independently advised in relation to any of the transfers and was not kept informed about the details of the purchase and build – Where the cross defendants continually pressured the testatrix to transfer her money to them to finance the project and where the testatrix never ended up living at the property before her death – Held: transfers totalling $450,000 were held to be loans payable to the estate (or, alternatively, set aside on grounds of unconscionable conduct), but in either case only up to the amount of $361,020.