Aplin & Aplin v Aplin [2011] NSWSC 1409

Supreme Court New South Wales

Medium Neutral Citation: Aplin & Aplin v Aplin [2011] NSWSC 1409 Hearing dates: 22 November 2011 Decision date: 19 December 2011 Jurisdiction: Equity Division Before: Hallen AsJ Decision: 1. Having found that each Plaintiff is an eligible person and that the provision made for her and him in the Will of the deceased is inadequate, order that, in lieu of the provision made for the Plaintiffs in Clause 3 of the Will of the deceased, each of the Plaintiffs is to receive a lump sum of $110,000 out of the estate of the deceased. 2. Order that the lump sums should be paid within 28 days, failing which, interest on any amount not so paid, should be paid at the rate prescribed for the purposes of s 84A(3) of the Probate and Administration Act 1898, as the rate of interest on legacies, calculated from that date until the date of payment. 3. Order that the Plaintiffs' costs, calculated on the ordinary basis, and the Defendant's costs, calculated on the indemnity basis, be paid out of the estate of the deceased. 4. Order that the exhibits and subpoenaed material may be returned forthwith; any exhibits returned must be retained intact by the party or person that produced the material until the expiry of the time to file an appeal, or until any appeal has been determined. Catchwords: Proceedings commenced by mother of the Plaintiffs as tutor, in which a claim for a family provision order, under the Succession Act 2006 sought for each of two children of deceased - Only issue is whether adequate provision for proper maintenance education or advancement in life made in the Will of the deceased for the Plaintiffs - Competing claim of beneficiary widow Legislation Cited: Family Provision Act 1982 Succession Act 2006 Probate and Administration Act 1898 Succession Amendment (Family Provision) Act 2008 Cases Cited: Allardice In re, Allardice v Allardice (1909) 29 NZLR 959 Bosch v Perpetual Trustee Co Ltd [1938] AC 463 Collins v McGain [2003] NSWCA 190 Cooper v Dungan (1976) 50 ALJR 539 Devereaux-Warnes v Hall [No 3] [2007] WASCA 235; (2007) 35 WAR 127 Diver v Neal [2008] NSWSC 304 Foley v Ellis [2008] NSWCA 288 Goodman v Windeyer (1980) 144 CLR 490 Gorton v Parks (1989) 17 NSWLR 1 Hastings v Hastings [2010] NSWCA 197 Hughes v National Trustees, Executors and Agency Co of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134 Kay v Archbold [2008] NSWSC 254 McCosker v McCosker (1957) 97 CLR 566 McKenzie v Topp [2004] VSC 90 Mayfield v Lloyd-Williams [2004] NSWSC 419 Neil v Jacovou [2011] NSWSC 87 Permanent Trustee Company v Fraser (1995) 36 NSWLR 24 Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1961) 107 CLR 9 Puckridge, Deceased, In the Estate of (1978) 20 SASR 72 Samsley v Barnes [1990] NSWCA 161; (1991) DFC 95-100 Singer v Berghouse (No 2) [1994] HCA 40; (1994) 181 CLR 201 Stern v Sekers; Sekers v Sekers [2010] NSWSC 59 Stott v Cook (1960) 33 ALJR 447 Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191 Walker v Walker (NSWSC, 17 May 1996, unreported) Category: Principal judgment Parties: Josie Cate Aplin by her tutor Jennifer Lisa Aplin (first Plaintiff) Daniel James Aplin by his tutor Jennifer Lisa Aplin (second Plaintiff) Natasha Fiona Aplin (Defendant) Representation: Counsel: Mr P O'Loughlin (Plaintiffs) Mr A Hill (Defendant) Solicitors: Connolly Suthers Lawyers (Plaintiffs) Gordon A Salier (Defendant) File Number(s): 2011/123037