Curtis v Curtis [2023] NSWSC 1164

Supreme Court New South Wales

Medium Neutral Citation: Curtis v Curtis [2023] NSWSC 1164 Hearing dates: 18 – 20 September Date of orders: 28 September 2023 Decision date: 28 September 2023 Jurisdiction: Equity - Succession & Probate List - Family Provision Before: Elkaim AJ Decision: 1. Pursuant to s 59 of the Succession Act 2006 (NSW) Blake Curtis (the first plaintiff) is to receive, by way of provision, out of the estate of the late Barry John Curtis (the deceased), 20% of the net proceeds of the sale of the deceased's property situated at xx xxxxx xxxxx, xxxxxxx in the state of New South Wales, being xxx xx xx xxxxxx Folio No xxxxxx, (the property). 2. Pursuant to s 59 of the Succession Act 2006 (NSW) Brock Curtis (the second plaintiff) is to receive, by way of provision, out of the estate of the deceased, 20% of the net proceeds of the sale of the property. 3. No interest is to be paid on the sums payable to the plaintiffs if those sums are paid within 28 days of the settlement of the property. 4. In the event that interest does become payable it is to accrue at the rate prescribed by s 84A(3) of the Probate and Administration Act 1898 (NSW) on any unpaid part of the entitlement of each plaintiff calculated from 28 days after settlement of the property. 5. The costs of the plaintiffs are to be paid out of the estate of the deceased, calculated on an ordinary basis. 6. The costs of the defendants are to be paid out of the estate of the deceased, calculated on an indemnity basis. 7. Each party has liberty to apply for consequential and ancillary orders for the purpose of, or with respect to, giving effect to and implementing the above orders. Catchwords: SUCCESSION – family provision – claim by grandchildren of the deceased – whether plaintiffs are eligible persons under s 57(1) of the Succession Act 2006 (NSW) – whether plaintiffs were wholly or partly dependent on deceased at any particular time – where plaintiffs did not receive money from the deceased's estate – whether plaintiffs warranted provision – extent of the provision Legislation Cited: Probate and Administration Act 1898 (NSW), s 84A(3) Succession Act 2006 (NSW), ss 57, 59, 60 Cases Cited: Chisak v Presot [2022] NSWCA 100 Estate of Awad [2023] NSWSC 765 Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9; [1962] HCA 19 Shymko v Lach [2022] NSWSC 1096 Watson v Foxman (1995) 49 NSWLR 315 Category: Principal judgment Parties: Blake Johnathon Curtis (First Plaintiff) Brock Ryan Curtis (Second Plaintiff) Peter Arthur Curtis (Defendant) Representation: Counsel: Ms L Clarke (Plaintiff) Mr C Simpson (Defendant)