Haertsch v Whiteway

[2020] NSWCA 133

NSW Court of Appeal

View on CaseLaw

Built by Barristers,
For Australian Law.

See how it works

Interrogate

Catchwords

1. Succession
2. › Family provision
3. › Notional estate
4. › Distributed estate
5. › Whether property held by executor of deceased beneficiary capable of designation as notional estate
6. › Whether executor a 'person' by whom property 'became held' as a result of distribution
7. › Whether 'as a result of' invites chain of causation inquiry
8. › Family Provision Act 1982 (NSW), s 24
1. Succession
2. › Family provision
3. › Extension of time
4. › Application 12.5 years out of time
5. › Whether sufficient cause shown
6. › Whether general assurances of testamentary benefit constitute sufficient cause
7. › Whether prejudice to deceased beneficiary and her estate properly assessed
8. › Whether applicant's position improved by delay at expense of competing beneficiary
9. › Family Provision Act 1982 (NSW), ss 16(2), 16(3)(b)
1. Appeal
2. › Standard of appellate review
3. › Appeal from discretionary decision to extend time
4. › Whether House v The King error established
5. › Failure to take into account relevant consideration

Quick Take

Practitioners seeking notional estate orders under s 24 of the Family Provision Act 1982 (NSW) cannot target property held by the executor of a deceased beneficiary; the section only reaches the direct recipient of the distribution, and where that person has died, s 24 cannot be used to reach their estate.