Sammut v Kleemann [2012] NSWSC 1030

Supreme Court New South Wales

Medium Neutral Citation: Sammut v Kleemann [2012] NSWSC 1030 Hearing dates: 27 August 2012 Decision date: 05 September 2012 Jurisdiction: Equity Division Before: Hallen AsJ Decision: (i) Having found that the Plaintiff, Richard Anthony Sammut, is an eligible person, that there are factors which warrant the making of his application and that the provision made for him in the Will of the deceased is inadequate for his proper maintenance or advancement in life, order that he is to receive a lump sum of $96,500 out of the estate of the deceased. (ii) Order that the burden of the provision made for the Plaintiff, should be borne out of the residuary estate of the deceased by the Defendants equally. (iii) Order that no interest is to be paid on the lump sum if that lump sum is paid within 14 days of the making of these orders; otherwise, interest calculated at the rate prescribed by s 84A(3) Probate and Administration Act 1898, on unpaid legacies, is to be paid from that date until the date of payment. (iv) Order that the costs of all parties shall be determined after further submissions, unless agreement is reached between them. (v) Order that the Exhibits should be dealt with in accordance with the Uniform Civil Procedure Rules 2005 following the determination of the costs of the proceedings. (vi) Further consideration with respect to orders for the purpose of giving effect to the family provision order made in favour of the Plaintiff be reserved. (vii) Stand the matter over to a convenient date to the parties and the court for any argument as to costs. Catchwords: SUCCESSION - FAMILY PROVISION - The Plaintiff, a grandchild of the deceased, applies for a family provision order under Chapter 3 of the Succession Act 2006 - The Defendants are son and daughter-in-law of the deceased, to whom Probate of the deceased's Will was granted and to whom the whole estate was left in equal shares - Whether Plaintiff is an eligible person - Whether there are factors which warrant the making of his application - and, if so, whether adequate and proper provision not made in Will of the deceased for the Plaintiff. Legislation Cited: Civil Liability Act 2002 Family Provision Act 1982 Probate and Administration Act 1898 Property (Relationships) Act 1984 Succession Act 2006 Succession Amendment (Family Provision) Act 2008 Uniform Civil Procedure Rules 2005 Cases Cited: Alexander v Jansson [2010] NSWCA 176 Allardice, In re, Allardice v Allardice (1909) 29 NZLR 959 Allen (deceased), Re; Allen v Manchester [1922] NZLR 218 Amaca Pty Ltd v Novek [2009] NSWCA 50 Anderson v Teboneras [1990] VicRp 47; [1990] VR 527 Bartlett v Coomber [2008] NSWCA 100 Bosch v Perpetual Trustee Co Ltd [1938] AC 463 Bowditch v NSW Trustee and Guardian [2012] NSWSC 275 Brown v Faggoter [1998] NSWCA 44 Buckland Deceased, Re [1966] VR 404 Churton v Christian (1988) 13 NSWLR 241 Collins v McGain [2003] NSWCA 190 Collins v Mutton [2012] NSWSC 548 Cooper v Dungan (1976) 50 ALJR 539 Davis v Davis; Robyn Davis by Her Tutor Sandra Arnold v Ian Andrew Davis as the executor of the estate of the late John Joseph Davis [2012] NSWSC 201 Devereaux-Warnes v Hall (No 3) [2007] WASCA 235; (2007) 35 WAR 127 Diver v Neal [2009] NSWCA 54 Edgar v Public Trustee for the Northern Territory [2011] NTSC 5 Evans v Levy [2011] NSWCA 125 Foley v Ellis [2008] NSWCA 288 Frey v Frey (as personal representatives of the estate of HE Frey, dec'd) [2009] QSC 43 Fulop Deceased, Re (1987) 8 NSWLR 679 Gardiner v Gardiner (NSWSC, 28 May 1998, unreported) Goodman v Windeyer (1980) 144 CLR 490 Gorton v Parks (1989) 17 NSWLR 1 Hakim, Re Estate of; Simons v Permanent Trustee Co Ltd [2005] NSWSC 223 Haklany v Gittany [2011] NSWSC 1549 Hughes v National Trustees Executors and Agency Co. of Australasia Ltd (1979) 143 CLR 134 Hyatt v Covalea [2011] VSC 334 Hyland v Burbidge [2000] NSWSC 12 Kay v Archbold [2008] NSWSC 254 Kembrey v Cuskelly [2008] NSWSC 262 Kleinig v Neal (No 2) (1981) 2 NSWLR 532 McCosker v McCosker (1957) 97 CLR 566 McKenzie v Baddeley [1991] NSWCA 197 Matthews v Wear [2011] NSWSC 1145 Mayfield v Lloyd-Williams [2004] NSWSC 419 Morrison v Carruthers [2010] NSWSC 430 Neil v Jacovou [2011] NSWSC 87 O'Dea v O'Dea [2005] NSWSC 46 Paola v State Trustees Ltd [2012] VSC 158 Pearson v Jones [2000] NSWSC 799 Penfold v Perpetual Trustee [2002] NSWSC 648 Petrohilos v Hunter (1991) 25 NSWLR 343 Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9 Porthouse v Bridge [2007] NSWSC 686 Puckridge, Deceased, In the Estate of (1978) 20 SASR 72 Sayer v Sayer [1999] NSWCA 340 Shaw v Shaw [2003] VSC 318; (2003) 11 VR 95 Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 Skinner v Frappell [2008] NSWCA 296 Stern v Sekers; Sekers v Sekers [2010] NSWSC 59 Stiles v Joseph (NSWSC, 16 December 1996, unreported) Stott v Cook (1960) 33 ALJR 447 Tsivinsky v Tsivinsky [1991] NSWCA 269 Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191 Walker v Walker (NSWSC, Young J, 17 May 1996, unreported) Williams v Legg (NSWCA, 16 March 1993, unreported) Category: Principal judgment Parties: Richard Anthony Sammut (Plaintiff) Frank John Kleemann (first Defendant) Jann Maria Kleemann (second Defendant) Representation: Counsel: Mr M Thompson (Plaintiff) Mr R Wilson (Defendants) Solicitors: Gerard Malouf & Partners (Plaintiff) Pritchard Law Group (Defendants) File Number(s): 2011/211302