On 6 July 2017, the Supreme Court of NSW handed down its decision in the case of Penninger v Penninger [2017] NSWSC 892. In this case, the plaintiff was the daughter of the deceased and therefore an eligible person under s57(c) of the Succession Act 2006. It is important to note that the estate in this matter was a very small estate with a net value of approximately $139,000.
This was a matter in which the plaintiff succeeded in her application for family provision claim, even though she was out of time.
The two main procedural issues dealt with were as follows:
- Plaintiff’s application made out of time; and
- Administration of the deceased’s estate.
The Court considered that the executor of the estate, had done “nothing to administer the estate until about six years after the death of the deceased”.
“The executor had been living on the deceased’s property since the death of the deceased.”
“Having found that the plaintiff had a reasonable claim the Court was of the view that sufficient cause had been shown for the making of her application. Thus the date of her application was extended to the date of the filing of the summons.”
“Consistent with prevailing community standards, the Court was satisfied that adequate provision for the proper maintenance or advancement in life of the plaintiff had not been made by the Will of the deceased.”
She was awarded a lump sum of $17,500 out of the deceased’ estate.
The Court ordered that administration of the deceased’s estate be granted to the Plaintiff for the purposes only of permitting her application for family provision claim to be dealt with.
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