Kemperman v Antonenas [2021] NSWSC 1555

Supreme Court New South Wales

Medium Neutral Citation: Kemperman v Antonenas [2021] NSWSC 1555 Hearing dates: 10-11 November 2021 Date of orders: 2 December 2021 Decision date: 11 November 2021 Jurisdiction: Equity Before: Hallen J Decision: The Court: (1) Orders, pursuant to s 59 of the Succession Act 2006 (NSW), that in addition to the provision made for her in Clause 5(b) of the Will dated 25 February 2015 of the deceased, the Plaintiff receive, by way of provision, a lump sum of $170,000, out of the estate of the deceased. (2) Orders that no interest be paid on the lump sum if it is paid within 14 days of the date of the making of these orders; and if not so paid, interest is to be paid on any unpaid part thereof, calculated at the rate prescribed by s 84A(3) of the Probate and Administration Act 1898 (NSW), from the 15th day from the date of the making of these orders until the date of payment in full. (3) Orders that the provision made for the Plaintiff be provided out of the residuary estate of the deceased. (4) Orders that the Plaintiff's costs and disbursements of the proceedings, being a specified gross sum instead of assessed costs, agreed in sum of $110,000 (including GST), be paid out of the estate of the deceased. (5) Orders that the Defendant's costs, calculated on the indemnity basis, be paid, or retained as the case may be, out of the estate of the deceased. Catchwords: SUCCESSION – Family Provision – Claim by adult daughter of the deceased for provision under Ch 3 of the Succession Act – No dispute as to eligibility under s 57(1)(c) of the Act – Limited provision made for Plaintiff – Reasons for the limited provision made for the Plaintiff stated in the Will of the deceased – Lack of close contact between adult daughter and the deceased – Allegation of violence and abuse made by the Plaintiff to explain the nature of the relationship - Significant dispute about the Plaintiff's allegation of violence and abuse - Whether Plaintiff has been left without adequate provision for her proper maintenance and advancement in life – Whether an order for provision should be made for Plaintiff's proper maintenance and advancement in life and, if so, in what amount Legislation Cited: Family Provision Act 1982 (NSW) Probate and Administration Act 1898 (NSW) ss 84A & 86 Succession Act 2006 (NSW) ss 3, 57-61, 63, 65, 84 & 99-100 Cases Cited: Ace v Guardian Trust and Executors Co Ltd [1948] NZLR 103 (SC); [1947] NZGazLawRp 127 Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308 Benham v Benham [2004] NSWSC 416 Bosch v Perpetual Trustee Co Ltd [1983] AC 463 Burke v Burke (No 2) (2015) 13 ASTLR 313; [2015] NSWCA 195 Carey v Robson (No 2) [2009] NSWSC 1199 Chan v Chan [2016] NSWCA 222; (2016) 15 ASTLR 317 Foley v Ellis [2008] NSWCA 288 Forsyth v Sinclair (No 2) (2010) 28 VR 635; [2010] VSCA 195 Hampson v Hampson (2010) 5 ASTLR 116; [2010] NSWCA 359 Harkness v Harkness (No 2) [2012] NSWSC 35 Hughes v National Trustees Executors & Agency Company of Australasia Ltd (1979) 143 CLR 134; [1979] HCA 2 In re Green, deceased; Zukerman v Public Trustee [1951] NZLR 135 Kiernan v Evan Alexander George Cranston & Robyn Ruth Purcell as Executors of the Will of Frances Elizabeth Anne Cranston (No 2) [2019] WASC 410 Limberger v Limberger; Oakman v Limberger [2021] NSWSC 474 Madden-Smith v Madden (Estate of the late Doris Linda Madden) [2012] NSWSC 146 Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9; [1962] HCA 19 Sgro v Thompson [2017] NSWCA 326 Shannon v Steinmetz [2019] HCASL 332 Slack v Rogan; Palffy v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522 Slack-Smith v Slack-Smith [2010] NSWSC 625 Sreckovic v Sreckovic [2018] NSWSC 1597 Stanford v Stanford [2021] NSWSC 1469 Steinmetz v Shannon (2019) 99 NSWLR 687; [2019] NSWCA 114 Tiburzi v Butler (2017) 17 ASTLR 1; [2017] SASCFC 89 Underwood v Gaudron [2014] NSWSC 1055 Underwood v Gaudron (2015) 324 ALR 641; [2015] NSWCA 269 Worsley v Solomon [2008] NSWSC 444 Yee v Yee [2017] NSWCA 305 Steinmetz v Shannon [2018] NSWSC 1090 Category: Principal judgment Parties: Antonia Regina Kemperman (Plaintiff) James Antonenas (Defendant) Representation: Counsel: V Hartstein (Plaintiff) S Chapple (Defendant)