Kensey (bht NSW Trustee & Guardian) v Thomas [2011] NSWSC 1434

Supreme Court New South Wales

Medium Neutral Citation: Kensey (bht NSW Trustee & Guardian) v Thomas [2011] NSWSC 1434 Hearing dates: 23 & 24 November 2011 Decision date: 16 December 2011 Jurisdiction: Equity Division Before: Hallen AsJ Decision: 1. Having found that the Plaintiff is an eligible person and that the provision made for her in the Will of the deceased is inadequate, order that the Plaintiff receive, in addition to the devise of the home unit at Penshurst, but in lieu of the other provision by way of legacy and share of residue made for her in the Will of the deceased, a lump sum of $500,000. 2. Order that the lump sum 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 Plaintiff's costs, calculated on the ordinary basis, and the Defendants' costs, calculated on the indemnity basis, be paid out of the estate of the deceased. 4. Order that the Court Book, the exhibits and subpoenaed material may be returned forthwith; any exhibits returned must be retained intact by the party, or person who produced the material until the expiry of the time to file an appeal, or until any appeal has been determined. 5. Grant leave to the Defendants to re-list the matter solely on the aspect of obtaining orders to adjust the interests affected by the making of the family provision order in favour of the Plaintiff. Catchwords: Proceedings commenced by the NSW Trustee & Guardian, the tutor of the Plaintiff, a disabled person, in which a claim for a family provision order, under the Succession Act 2006 was sought - Only issue is whether adequate provision for proper maintenance education or advancement in life made in the Will of the deceased for the Plaintiff - Competing claims of beneficiaries none of whom or which is an eligible person Legislation Cited: Family Provision Act 1982 Succession Act 2006 Probate and Administration Act 1898 Succession Amendment (Family Provision) Act 2008 Cases Cited: Bondelmonte v Blanckensee [1989] WAR 305 Bosch v Perpetual Trustee Co Ltd [1938] AC 463 Chan v Tsui [2005] NSWSC 82 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 [2009] NSWCA 54 Foley v Ellis [2008] NSWCA 288 Goodman v Windeyer (1980) 144 CLR 490 Gorton v Parks (1989) 17 NSWLR 1 Hawkins v Prestage (1989) 1 WAR 37 Hughes v National Trustees, Executors and Agency Co of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134 Kay v Archbold [2008] NSWSC 254 Kleinig v Neal (No 2) [1981] 2 NSWLR 532 McCosker v McCosker (1957) 97 CLR 566 Mayfield v Lloyd-Williams [2004] NSWSC 419 Neil v Jacovou [2011] NSWSC 87 Palaganio v Mankarios [2011] NSWSC 61 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 Singer v Berghouse (No 2) [1994] HCA 40; (1994) 181 CLR 201 Stern v Sekers; Sekers v Sekers [2010] NSWSC 59 Taylor v Farrugia [2009] NSWSC 801 Tchadovitch v Tchadovitch [2010] NSWCA 316 Thom v The Public Trustee (NSWSC, 2 April, 1992, unreported) Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191 Walker v Walker (NSWSC, 17 May 1996, unreported) Texts Cited: Australian Life Tables 2006-2008 issued by the Australian Bureau of Statistics Category: Principal judgment Parties: Erika Helene Kensey (by her Tutor NSW Trustee & Guardian) (Plaintiff) William Beach Thomas (first Defendant) John William Hanna (second Defendant) Representation: Counsel: Mr R Wilson (Plaintiff) Mr D Jenkins (Defendants) Solicitors: Zucker Legal (Plaintiff) Thomas & Company (Defendants) File Number(s): 2011/18471