Manning v Matsen [2015] NSWSC 1801

Supreme Court New South Wales

Medium Neutral Citation: Manning v Matsen [2015] NSWSC 1801 Hearing dates: 15 December, 27 & 28 November 2014, 24 April 2015 Date of orders: 11 December 2015 Decision date: 11 December 2015 Jurisdiction: Equity Before: Slattery J Decision: An order for family provision would be inutile because the estate has insufficient funds, and no order for notional estate is available. Catchwords: SUCCESSION – family provision – claim under Succession Act, Part 3.2 for provision out of deceased's estate – plaintiff is daughter of deceased who died leaving a small estate in cash – deceased's will makes no provision for the plaintiff – whether adequate provision has been made for the proper maintenance, education and advancement in life of the plaintiff – whether an order for provision should be made under Succession Act, Part 3.2 – where estate has insufficient available assets to order family provision – where deceased entered transaction three and half years before her death transferring an estate in remainder in her only real property to her son (the plaintiff's only sibling) and his wife – the son and his wife still hold the property so transferred to them – whether the Court should under Succession Act, Part 3.3 designate the son's interest in property as notional estate – valuation of reversion and life interest – what constitutes a relevant property transaction – whether transfer of life interest to remaindermen upon death is a relevant property transaction – when relevant property transaction takes effect – whether deceased's failure to set aside deed constituted a relevant property transaction

WORDS & PHRASES – "relevant property transaction" – "full valuable consideration" – reasonable expectations in relation to property" Legislation Cited: Adoption Information Act 1990 Real Property Act 1900, s 101 Succession Act 2006, ss 8, 57, 59, 74, 75, 76, 77, 78, 80, 83, 87 Cases Cited: Aboody v Ryan [2012] NSWCA 395; 17 BPR 32,359 Attorney-General v Boden [1912] 1 KB 539 Attorney-General v Earl of Sandwich [1922] 2 KB 500 Aubrey v Kain [2014] NSWSC 15 Drury v Smith [2012] NSWSC 1067 Evans v Levy [2011] NSWCA 125 Hogan v Hogan [2013] NSWSC 1405 John v John [2010] NSWSC 937 Kastrounis v Foundouradakis [2012] NSWSC 264 Phillips v James [2014] NSWCA 4; 85 NSWLR 619 Perpetual Trustee Co Limited v Commissioner of Stamp Duties (Hordern's case) (1970) 72 SR (NSW) 453; 92 WN (NSW) 163 Petschelt v Petschelt [2002] NSWSC 706 Ramsay v Schiller [2012] NSWSC 596 Re Marriott, deceased [1968] VR 260 Ryan v Aboody [2012] NSWSC 136 Singer v Berghouse (No. 2) (1994) 181 CLR 201 Wade v Harding (1997) 11 NSWLR 551 Wentworth v Wentworth [1992] NSWCA 268 Texts Cited: Macquarie Dictionary (online edition, 2015) PJ Butt, Land law (6th ed 2010, Thomson Reuters) C Harpum, S Bridge and M Dixon, Megarry and Wade, The Law of Real Property (8th ed 2012, London, Sweet & Maxwell) Category: Principal judgment Parties: Plaintiff: Sharon Lee Manning Defendant: Wayne Robert Matsen Representation: Counsel: Plaintiff: A. Gruzman Defendant: A. Hill