Towill v Towill [2024] NSWSC 1384

Supreme Court New South Wales

Medium Neutral Citation: Towill v Towill [2024] NSWSC 1384 Hearing dates: 23 October 2024 Date of orders: 25 October 2024 Decision date: 25 October 2024 Jurisdiction: Equity - Family Provision List Before: Slattery J Decision: Order for provision made from the estate of the deceased to the effect that the plaintiff receive one third of the net proceeds of sale of the Woolooware property. The estate is found to be insufficient to satisfy the order for provision and the Woolooware property is designated as notional estate. The defendant's costs are to be paid out of the estate or the designated notional estate on the indemnity basis. Order that the plaintiff's costs be paid out of the estate or the designated notional estate on the ordinary basis. Directions made for the sale of the Woolooware property and for the making of orders for provision made in favour of the plaintiff to be managed by an independent trustee. Catchwords: SUCCESSION — Family provision — Claim by adult grandchild – notional estate – plaintiff aged 33 brings a claim for family provision against the estate of his deceased grandmother – the deceased's will gives the whole of her estate to her son, who is both the defendant and the plaintiff's father but for a bequest of $30,000 to the plaintiff – the plaintiff lived much of his life in a household at a four-bedroom house in Woolooware with his grandmother and his father – severe tensions arose within the household and especially between the plaintiff and the defendant in the last five years of the deceased's life – defendant takes out ADVO against plaintiff – plaintiff presently homeless, unemployed, with a gambling addiction, and being treated for psychiatric illness – defendant remains in the Woolooware property – defendant unemployed – defendant unwilling to commit to provide for the plaintiff in his will – estate consists of the Woolooware property and cash and was distributed before the hearing – dependency not in issue and plaintiff conceded to be an eligible person – whether there are factors warranting the making of an order for provision – whether an order for provision should be made out of the estate of the deceased and if so on what sum – whether any property and if so what property should be designated as the notional estate of the deceased. Legislation Cited: Succession Act 2005 (NSW), Ch 6, ss 59, 61, 87, 100 Civil Procedure Act 2005 (NSW) s 98(4)(c) Cases Cited: Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308 Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392 Drury v Smith [2012] NSWSC 1067 Epov v Epov [2014] NSWSC 1086 Evans v Levy [2011] NSWCA 125 Hart v Van Son [2014] NSWSC 585 Petrohilos & Anor v Hunter (1991) 25 NSWLR 343 Pletersky v Pletersky [2012] NSWSC 277 Re Fulop Deceased (1987) 8 NSWLR 679 Saunders v Vautier (1841) 4 Beav 115; 49 ER 282 Singer v Berghouse (No 2) (1994) 181 CLR 201; [1994] HCA 40 Suzanne Hart v Joan Noelene Van Son [2014] NSWSC 585 Category: Principal judgment Parties: Jake Nicholas Towill (Plaintiff) Nicholas David Towill (Defendant) Representation: Counsel: L Reeves (Plaintiff) D Stewart (Defendant)