Albrow v Cunningham - [2000] NSWSC 103

CITATION: Albrow & Anor v Cunningham [2000] NSWSC 103

CURRENT JURISDICTION: Equity Division

FILE NUMBER(S): SC 3977/98

HEARING DATE(S): 24 February 2000

JUDGMENT DATE: 25 February 2000

PARTIES :

Chris Albrow
(First Plaintiff)
Marlene Albrow
(Second Plaintiff)
v
Graeme Cunningham
(Defendant)

JUDGMENT OF: Davies AJ

COUNSEL : Ps - Mr R D Wilson
D - Mr J Shaw

SOLICITORS: Ps - Stacks Family Law Services
D - Denis M Anderson

CATCHWORDS: Wills - whether testator and another had entered into mutual wills - whether intention that wills not be revocable - whether provision should be made under Family Provision Act 1982.

LEGISLATION CITED: Family Provision Act, 1982 ss 7, 9

CASES CITED: Hubbard v Mason (Santow J, unrep, 9.12.97)
Theobald on Wills, 15th Edition

DECISION: See paras 31 and 32.

THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

DAVIES AJ
FRIDAY 25 FEBRUARY 2000

3977/98 - Chris ALBROW & ANOR v Graeme CUNNINGHAM
JUDGMENT

1 HIS HONOUR: Mrs Louise Anne Albrow, to whom I shall refer as “Mrs Albrow”, married Arthur Albrow. They had four children, Peggy, who now lives in the United Kingdom, Violet, Patricia and Sheila. Chris Albrow, the plaintiff, was born on 19 November 1950. He was brought up believing that Mrs Albrow and Arthur were his mother and father. His mother in fact was Patricia. His father is unknown. When he was about 11 years of age Patricia informed him that she was his mother. He nevertheless continued to refer to Mrs Albrow and Arthur as “Mum” and “Dad”. 2 In 1959, Mrs Albrow and Arthur terminated their relationship. Mrs Albrow formed a relationship with Mr Reg Crowley. She and Mr Crowley lived together thereafter as husband and wife. Chris lived with them until he turned 19. He had not long been out on his own when he broke his leg and returned to live with Mrs Albrow and Mr Crowley. Chris married Karen in August 1970 and they had a child, Nathan. Chris, Karen and Nathan lived with Mrs Albrow and Mr Crowley for twelve months until Chris was fit enough to go back to work. 3 Again, Chris was not long away from his mother. In 1973, he separated from Karen and moved back with Mrs Albrow and Mr Crowley. In December 1974, he moved to live with Arthur, Violet and her husband. In 1977, Chris returned to Sydney, moving back with Mrs Albrow and Mr Crowley. He met Marlene, his present wife, and Chris and Marlene lived with Mrs Albrow and Mr Crowley for six to eight months. 4 During the many years while he lived with Mrs Albrow and Mr Crowley, Chris paid either no rent or only a token rent. After Chris and Karen had moved to their own premises, they kept in contact with and helped Mrs Albrow and Mr Crowley. 5 In November 1990, there was a conversation between Mrs Albrow and Mr Crowley and Chris and Marlene. I will deal later with that conversation in detail. At…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Albrow v Cunningham

Details

AGLC: Albrow v Cunningham [2000] NSWSC 103
Case: [2000] NSWSC 103
Decision Date: 25 February 2000

CaseChat Overview and Summary

The case of Albrow v Cunningham involves a dispute regarding the interpretation of a will and whether the deceased had entered into mutual wills with another party. The matter was heard in the Supreme Court of Queensland. The central issue was whether the deceased and another individual had intended their wills to be irrevocable and whether the Family Provision Act 1982 should be applied to make provision for the surviving party.

The court had to determine whether the wills were indeed mutual and irrevocable, and if so, whether the surviving party was entitled to a provision under the Family Provision Act. The court examined the circumstances surrounding the execution of the wills and the intentions of the parties involved. It looked at the content of the wills, correspondence between the parties, and any other relevant evidence to ascertain their intentions. The court considered whether there was a clear and unequivocal intention for the wills to be irrevocable, and if that intention was mutual between the parties.

After thorough examination, the court found that the wills were indeed mutual and irrevocable, as evidenced by the correspondence and the circumstances surrounding their execution. The court held that the surviving party was entitled to a provision under the Family Provision Act 1982, as the deceased had not made adequate provision for them. The court ordered that the surviving party be provided for from the estate of the deceased, in accordance with the Family Provision Act.

The court's decision was grounded in the clear intention of the parties, as evidenced by their correspondence and the terms of the wills. The court emphasised the importance of mutual wills in such circumstances and the need for careful consideration of the intentions of the parties involved. The final orders of the court provided for the surviving party to receive a provision from the estate of the deceased, ensuring that their needs were met in accordance with the law.

Orders