Allen v Allen - [2012] NSWSC 140

Supreme Court

New South Wales

Medium Neutral Citation: Allen v Allen [2012] NSWSC 140
Hearing dates: 23/11/11, 24/11/11
Decision date: 22 March 2012
Jurisdiction: Equity Division
Before: Associate Justice Macready
Decision:
(1)The plaintiff's summons is dismissed;
(2)I will hear submissions on costs.

Catchwords: WILLS AND ESTATES - Succession Act 2006 - application for family provision order by daughter of deceased - four children of deceased all beneficiaries - daughter received provision of 15% of estate - daughter estranged from deceased - small estate - other beneficiaries with significant needs - application dismissed
Legislation Cited: Evidence Act 1995
Family Provision Act 1982
Succession Act 2006
Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336
Foley v Ellis [2008] NSWCA 288
Ford v Simes [2009] NSWCA 351
Gianoutsos v Glykis [2006] NSWCCA 137
Kleinig v Neal (No 2) [1981] 2 NSWLR 532
Smilek v Public Trustee [2008] NSWCA 190
Singer v Berghouse (1994) 181 CLR 201
Taylor v Farrugia [2009] NSWSC 801
Walker v Walker (NSWSC, 17 May 1996, unreported)
Category: Principal judgment
Parties: Denise Anne Allen (plaintiff)
Richard Derrick James Allen (defendant)
Representation: Mrs S Foda (plaintiff)
Mr R Colquhoun (defendant)
Solicitors:
Bales Boshev Lawyers (plaintiff)
John Katen Lawyer (defendant)

File Number(s): 2010/421895

Judgment

This is an application under the Succession Act 2006 in respect of the estate of the late Joyce Kathleen Mary Allen who died on 1 January 2010 aged 80 years. Her husband predeceased her in 1991 and she was survived by her four children. The plaintiff and the defendant are children of the deceased.

Last will of the deceased

The deceased made her last will on 11 December 2008 under which she left her estate to her four children. The deceased left Stephen Allen 35 percent; Richard Allen 25 percent; Keith Allen 25 percent and Denise Allen 15 percent of the estate. Richard was appointed executor.

The deceased had made a will in 1994 in which she left her estate to Stephen, Richard, Keith and Denise's daughter, Karen Bass.

Estate of the deceased

The deceased had a property at Tumbarumba Crescent, Heckenberg and small amounts of cash and shares. The house has been sold and the estate has been reduced to cash of $291,522.66.

So far costs of $12,140.00 have been paid by the defendant, leaving an amount of $279,382.05 held in the defendant's solicitor's trust account. The balance of the costs, to the end of the two-day hearing, are estimated to be $49,355. The plaintiff, Denise's, costs are estimated to be $75,395.00.

If an other is made in favour of the plaintiff, the available estate is therefore in the order of $154,632.00. As the estate is presently to be distributed, Stephen's share of this net estate would be approximately $54,121; Richard and Keith's share would be approximately $38,658 each; Denise's share would be approximately $23,194. If no such order is made Stephen's share would be $80,509, Richard's and Keith's share $57,506 and Denise's share $34,504.

Family history

The deceased was born on 23 December 1929. As…

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 Allen v Allen

Details

AGLC: Allen v Allen [2012] NSWSC 140
Case: [2012] NSWSC 140
Decision Date: 22 March 2012

CaseChat Overview and Summary

The case of Allen v Allen involved an application by a daughter, one of four beneficiaries, for a family provision order under the Succession Act 2006. The deceased left a small estate, and all four children were beneficiaries. The daughter, who was estranged from her father, sought a larger share of the estate than the 15% she had already received, claiming inequity in the distribution of the estate. The other three children had significant needs that required consideration.

The court had to determine whether the initial distribution of the estate was inequitable, particularly in light of the daughter's estrangement and the needs of the other beneficiaries. The court considered the statutory criteria for a family provision order, including whether the deceased had made inadequate provision for the applicant. The court also weighed the estrangement of the applicant and the needs of the other beneficiaries against the applicant's claim.

In dismissing the application, the court held that the deceased had made adequate provision for the applicant and that the estrangement did not justify a larger share. The court found that the needs of the other beneficiaries outweighed the applicant's claim, and thus, no order was made in favour of the applicant. The court's decision reflected a careful consideration of the statutory provisions and the unique circumstances of the family.

The final orders of the court were that the application for a family provision order was dismissed, and the estate was to be distributed as per the terms of the will, with no further adjustments to the shares of the beneficiaries.

Orders