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Amos v Hogg

Amos v Hogg

Case [2018] NSWSC 1226 15 August 2018

Family Provision Order

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Supreme Court

New South Wales

Medium Neutral Citation: Amos v Hogg [2018] NSWSC 1226
Hearing dates: 2 – 4 July 2018
Date of orders: 15 August 2018
Decision date: 15 August 2018
Jurisdiction: Equity
Before: Hallen J
Decision:
The Court:
(i) Orders that the matter be adjourned to a date mutually convenient to the Court and the parties, to enable the parties to agree upon the final form of orders, including any orders as to costs.
(ii) Directs the parties to bring in Short Minutes of Order reflecting these reasons and proposed orders.
(iii) Orders that if agreement is reached, signed Short Minutes of Order may be forwarded to the Court, for consideration, in Chambers, so that the orders proposed may be made, and entered, and the adjourned date be vacated.
Catchwords: SUCCESSION – FAMILY PROVISION – The Plaintiff, an adult adopted child of the deceased, makes a claim for a family provision order by way of additional provision out of the estate of the deceased – No dispute as to the Plaintiff’s eligibility as an adopted child of the deceased – Deceased divided estate into percentage shares – Plaintiff received 10 per cent under the deceased’s last Will – Modest estate in value, comprising cash – Only one of the other beneficiaries advanced competing financial claim – Other beneficiaries named in the Will of the deceased rely upon competing claim as chosen objects of testamentary bounty – Two different written and signed statements by the deceased providing reasons for the provision made for the Plaintiff – Plaintiff and deceased estranged at the date of death – Period of estrangement about 2 years – Whether estrangement, by itself, terminates obligation of parent towards a child in financial need – Plaintiff has limited income and no savings – Plaintiff suffers various health conditions – Some provision made by deceased in her lifetime for the Plaintiff – Whether family provision order should be made, and if so, the nature and quantum of the provision to be made
Legislation Cited: Evidence Act 1995 (NSW)
Family Provision Act 1982 (NSW)
Inheritance (Family Provision) Act 1972 (SA)
Succession Act 2006 (NSW)
Cases Cited: Afoa v McBride [2017] NSWCA 323
Alexander v Jansson [2010] NSWCA 176
Anderson v Teboneras [1990] VR 527
Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308
Boettcher v Driscoll (2014) 119 SASR 523; [2014] SASC 86
Bosch v Perpetual Trustee Co Ltd [1938] AC 463
Bowditch v NSW Trustee and Guardian [2012] NSWSC 275
Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34
Burke v Burke (2015) 13 ASTLR 313; [2015] NSWCA 195
Carey v Robson (No 2) [2009] NSWSC 1199
Chan v Chan [2016] NSWCA 222
Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392
Collicoat v McMillan [1999] 3 VR 803
Condello v Kim [2018] NSWSC 394
de Angelis v de Angelis [2003] VSC 432
Devereaux-Warnes v Hall (No 3) (2007) 35 WAR 127; [2007] WASCA 235
Diver v Neal [2009] NSWCA…

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 Amos v Hogg

Details

AGLC: Amos v Hogg [2018] NSWSC 1226
Case: [2018] NSWSC 1226
Decision Date: 15 August 2018

CaseChat Overview and Summary

The case of Amos v Hogg involved the plaintiff, an adopted child of the deceased, who sought a family provision order from the estate of the deceased. The deceased had divided her estate into percentage shares, with the plaintiff receiving 10 per cent under the terms of her last Will. The estate, though modest in value, was comprised entirely of cash. Among the other beneficiaries, only one advanced a competing financial claim. The remaining beneficiaries named in the Will argued that they were the chosen objects of the deceased's testamentary bounty. The deceased had provided two different written and signed statements explaining the reasons for the provisions made for the plaintiff. At the time of the deceased's death, the plaintiff and the deceased were estranged, with the period of estrangement being approximately two years. The central legal issue was whether the estrangement alone could terminate the deceased's obligation towards the plaintiff, who was in financial need and suffered from various health conditions. Additionally, the court had to consider whether some provisions made by the deceased in her lifetime for the plaintiff warranted any further family provision order, and if so, the nature and quantum of such provision.

The court examined the relevant statutory provisions governing family provision orders, including the factors that must be considered under the relevant statute. It considered the nature and extent of the deceased's obligation to provide for the plaintiff, particularly given the estrangement and the deceased's actions during her lifetime. The court also assessed the financial needs of the plaintiff, her health conditions, and the reasons provided by the deceased for the provisions made in the Will. In weighing these factors, the court found that while the estrangement was significant, it did not automatically absolve the deceased of her obligations towards the plaintiff. The court further noted that some provision had been made for the plaintiff in the deceased's lifetime and that the plaintiff's financial needs and health conditions warranted additional consideration.

The court ultimately determined that a family provision order should be made in favour of the plaintiff. It assessed the plaintiff's limited income and lack of savings, along with her health conditions, as significant factors in favour of an order. The court also considered the reasons provided by the deceased for the provisions made in the Will and the competing claims from other beneficiaries. After careful consideration, the court made an order for the plaintiff to receive a specified amount from the estate, reflecting its assessment of the plaintiff's needs and the deceased's obligations. This decision balanced the competing interests of the beneficiaries and provided for the plaintiff's financial needs and health conditions.

Orders