Oxley v Oxley [2018] NSWSC 91

Supreme Court New South Wales

Medium Neutral Citation: Oxley v Oxley [2018] NSWSC 91 Hearing dates: 27 – 29 November 2017 Date of orders: 14 February 2018 Decision date: 14 February 2018 Jurisdiction: Equity Before: Hallen J Decision: (a) Orders that the Amended Summons be dismissed.

(b) Makes no order as to the costs of either of the Plaintiffs, noting that there is a conditional costs agreement made with his, and her, solicitors, so that neither will have any obligation to pay any costs and disbursements of the proceedings.

(c) Orders that the first Defendant's costs, calculated on the indemnity basis, of the proceedings, be paid, or retained, as the case may be, out of the estate of the deceased.

(d) Makes no order as to the costs of the second Defendant.

(e) Notes that to the extent that there is insufficient in the estate to pay the first Defendant's costs and disbursements, the Defendants will resolve, between themselves, how the balance of any unpaid costs and disbursements should be borne.

(f) Orders that the Exhibits be dealt with in accordance with the Uniform Civil Procedure Rules 2005 (NSW) (rule 31.16A and rule 33.10) and Practice Note No SC Gen 18. Catchwords: SUCCESSION – FAMILY PROVISION – Claim for family provision order under Part 3.2 of the Succession Act 2006 (NSW) by two adult children of the deceased – The first Defendant, the executor of the Will of the deceased to whom Probate granted and also a child of the deceased – Actual estate consisting of small amount of cash all of which will be expended in first Defendant's costs of the proceedings - Jointly held property transmitted to second Defendant, as the surviving joint tenant, on the deceased's death – Order sought designating deceased's interest in jointly held property as notional estate - Whether adequate and proper provision not made in Will of the deceased for each of the Plaintiffs – Nature and quantum of provision, if any, that ought to be made for each of the Plaintiffs - Whether order designating property as notional estate should be made.