Ovens v Ovens; The Estate of the late May Enid Ovens [2020] NSWSC 568

Supreme Court New South Wales

Medium Neutral Citation: Ovens v Ovens; The Estate of the late May Enid Ovens [2020] NSWSC 568 Hearing dates: 14 February 2020 Date of orders: 15 May 2020 Decision date: 15 May 2020 Jurisdiction: Equity Before: Slattery J Decision: No order designating notional estate made. No order for further provision for the plaintiff is made out of the estate. Defendants' costs ordered to be paid out of the plaintiff's share of the estate on the indemnity basis. Plaintiff ordered to bear his own costs of the proceedings. Catchwords: SUCCESSION – family provision – testator dies survived by three sons, one other son having predeceased her – testator made a gift of real estate during her lifetime to one of her sons, the first defendant and his wife, the second defendant – the testator made the first defendant executor of her last will – that will divided the substance of her estate, giving three quarters of it to another son, the plaintiff, and one quarter, to another surviving son, on trust for his children – plaintiff brings a claim under Succession Act 2006, Chapter 3 contending that he has been left without adequate provision from the testator's estate for his proper education, maintenance and advancement in life – whether a further order for provision out of the deceased's estate should be made – whether the property transferred to the first and second defendants should be designated as notional estate – whether a notional estate order should not be made on the grounds that it is out of time – whether there are "special circumstances" allowing a notional estate designation – whether a designation of notional estate will interfere with the first and second defendants' reasonable expectations about the ownership of their property. Legislation Cited: Succession Act 2006, Chapter 3; ss 58(2), 59(1)(c), 80, 87, 88, 90(2) Cases Cited: Drury v Smith [2012] NSWSC1067 Ebert v Ebert; Ebert v Ebert [2008] NSWSC 1206 Evans v Levy [2011] NSWCA 125 Singer v Berghouse (No. 2) (1994) 181 CLR 201 Yee v Yee [2017] NSWCA 305 Category: Principal judgment Parties: Plaintiff: Brett Anthony Ovens Defendant: Grant Geoffrey Ovens Representation: Counsel: Plaintiff: R.K. Weaver Defendant: J. Armfield