Carr v Douglass [2016] NSWSC 854

Supreme Court New South Wales

Medium Neutral Citation: Carr v Douglass [2016] NSWSC 854 Hearing dates: 18 & 19 June, 18 August and 21 September 2015 Date of orders: 24 June 2016 Decision date: 24 June 2016 Jurisdiction: Equity Before: Slattery J Decision: Order for provision in the sum of $275,000 made for the plaintiff out of the estate of the deceased. Orders made designating as notional estate the deceased's interest in the Austral property. Catchwords: SUCCESSION – family provision – plaintiff is daughter of deceased and his second wife – the plaintiff's mother dies when the plaintiff is very young – deceased reconciles with first wife to a degree - application filed out of time – whether an extension of time should be given to permit the plaintiff's application to proceed out of time – small specific gifts to plaintiff under the will – the estate has few assets – claim for an order designating notional estate – whether notional estate should be designated – whether an order for provision should be made in the plaintiff's favour out of the deceased's estate – if an order for provision were to be made, what provision is appropriate for the plaintiff in the circumstances.

NOTIONAL ESTATE – Succession Act, Part 3.3 – claim that two items of the deceased's property be designated as notional estate, real estate and an interest in a superannuation fund – as to the real estate, the deceased was a joint tenant with his first wife in real estate held under the Real Property Act 1900 – before his death deceased lodges for registration a Transfer Severing Joint Tenancy – but deceased died before the Transfer becomes effective – whole of property passes to first wife by survivorship – property sold – proceeds retained – whether deceased's interest in the co-owned property should be designated as notional estate – as to the superannuation fund, in July 2008 deceased made binding nomination over his interest in a self-managed superannuation fund in favour of his estate, as required by the Superannuation Industry (Supervision) Act 1993 (Cth) ("the SIS Act") – nomination is for three years until July 2011, the maximum period permitted by the SIS Act – deceased does not renew the nomination under the SIS Act, although the SIS Act requires a valid current nomination – trustee resolves to pay the assets of the Superannuation fund to the first wife – whether the deceased's interest in the superannuation fund should be designated as notional estate. Legislation Cited: Real Property Act 1900 Succession Act 2006, ss 57, 58(2), 59 Superannuation Industry (Supervision) Act 1993 (Cth) Supreme Court Rules Part 77, Rule 3 Cases Cited: Drury v Smith [2012] NSWSC 1067 Evans v Levy [2011] NSWCA 125 Kastrounis v Foundouradakis [2012] NSWSC 264 Phillips v James [2014] NSWCA 4 Singer v Berghouse (No. 2) (1994) 181 CLR 201 Vanderloo v Milne [2014] NSWSC 1932 Verzar v Verzar [2012] NSWSC 1380 Category: Principal judgment Parties: Plaintiff: Tina Marie Carr First Defendant: Gordon Leslie Douglass Second Defendant: Nancy Pickering Third Defendant: Margaret Carr Representation: Counsel: Plaintiff: G.J. Smith Third Defendant: S.O'Brien