Reg Grundy died in Bermuda (his place of domicile) on 6 May 2016, aged 93 years, leaving a will dated 21 January 2011 and sufficient property in NSW to admit the Will to probate in that jurisdiction. In 2015, Reg’s wealth was estimated as being $809 million, a figure largely stemming from the $320 million sale of Grundy’s company to Pearson Television in 1995.
An earlier post discussed the April 2017 claim for family provision relief in respect of the estate, or notional estate, by Reg’s child from his first marriage; who changed her name by deed poll in 2000, from Robyn Grundy to her present name, Viola La Valette.
Reg and Viola were estranged for some time before his death; a lifetime annuity of $US250000 was provided to Viola. Joy Chambers-Grundy, Reg’s widow, executor and, having survived him by 30 days, takes “the remainder” (the residue) of his estate.
Recently Simon Russell has come forward claiming to be Reg’s son; he is seeking a family provision order from the estate. The Court was told that DNA samples from both Reg and Simon were being held at a lab. Testing will not occur until an affidavit from Joy, (which has been sent from where she lives in Bermuda) is received by the lab.
Generally speaking, a Family Provision Claim is made in a jurisdiction where the deceased lived at the date of their death, owned assets in that jurisdiction, or both.
In most Jurisdictions, legislation governs who can bring a claim against an estate. Generally, this is:
- The deceased’s spouse, a person living in a de facto relationship with the deceased at the time of death, a person living in a close personal relationship (such as a volunteer carer) with the deceased when the deceased died;
- The deceased’s child;
- The deceased’s former spouse;
- A person who was:
- Dependent (wholly or partly) on the deceased at a particular time (this may include a former de facto spouse, parent, sibling, or step-child; and
- A grandchild of the deceased, or a member of the household of the deceased;
- believe they have been left without adequate provision for the proper maintenance, education or advancement in life.
The Court takes a number of factors into account the applicant’s financial position, relationship with the deceased, the size of the estate and the deceased’s relationship with other persons who are eligible to make a claim.
Adequate provision is unique and therefore difficult to define.
The Court considers a broad range of factors, as the definition of adequate provision is unique to each circumstance brought before the court.
Notional estate orders are orders issued by the Court which are intended to make available for family provision orders assets that are no longer part of the estate of a deceased person because they have been distributed either before or after the deceased’s death (either with or without the intention of defeating applications for family provision).
Notional estate provisions brought to the forefront the distinction of ‘estate versus notional estate’ that had been implicit in the decisions on the legislation prior to the introduction of the Family Provision Act 1982(NSW). It made explicit in the legislation that ‘estate’ and ‘notional estate’ were different. Things subject to contracts (like mutual wills) were not within the definition of ‘estate’. To bring such property within the estate required the a broader definition to include a ‘notional estate’.
Even then it requires a particular kind of transaction, an absence of relevant consideration, a defined time frame in which the transaction took effect and a range of other matters to be considered before property can be designated as notional estate and made the subject of an order for family provision under the Act.