Amprimo v Wynn - [2014] NSWSC 991

Supreme Court

New South Wales

Medium Neutral Citation: Amprimo v Wynn [2014] NSWSC 991
Hearing dates: 28 - 30 April 2014 and 19 June 2014
Decision date: 24 July 2014
Jurisdiction: Equity Division
Before: Rein J
Decision:
Summons dismissed.

Catchwords: EQUITY - Succession - Claim for family provision - Plaintiff not an eligible person - Plaintiff not a person with whom the deceased person was living in a de facto relationship at the time of the deceased person's death - Plaintiff not a person with whom the deceased person was living in a close personal relationship at the time of the deceased person's death - Plaintiff not wholly or partly dependent on the deceased person
Legislation Cited: De Facto Relationships Act 1984 (NSW)
Family Law Act 1975 (Cth)
Family Provision Act 1982 (NSW)
Interpretation Act 1987 (NSW)
Property (Relationships) Act 1984 (NSW)
Relationships Register Act 2010 (NSW)
Succession Act 2006 (NSW)
Cases Cited: Barlevy v Nadolski [2011] NSWSC 129
Hayes v Marquis [2008] NSWCA 10
Jonah v White [2011] FamCA 221
Thompson v The Public Trustee of New South Wales [2010] NSWSC 1137
Category: Principal judgment
Parties: Janet Emily Amprimo (Plaintiff)
David Eckford Wynn (Defendant)
Representation: Counsel:
J Drummond (Plaintiff)
L Ellison SC/M Pringle (Defendant)
Solicitors:
Heckenberg Lawyers (Plaintiff)
Foulsham & Geddes Solicitors (Defendant)
R d'Apice (Amicus for Mr Britton)

File Number(s): 2012/393499

Judgment

The late Joseph Michael Ryan ("the deceased") died in February 2012. Probate of his will of 18 July 1996 was granted to his executor Mr David John Eckford Wynn.

The beneficiaries named in the will were:

(1) Brian John Britton (one half) ("Mr Britton")

(2) John Hilton Ryan (one eighth) ("Mr John Ryan")

(3) Brian Thompson (one eighth) ("Mr Thompson")

(4) Michael Williams (one eighth) ("Mr Williams")

(5) Phillipa Ella Duncan (one eighth) ("Ms Duncan")

Mr John Ryan died before the deceased, so that the shares to Mr Thompson, Mr Williams and Ms Duncan have become one sixth each.

Mr Thompson died on 3 December 2012.

Mr Britton, Mr Thompson and Mr Williams were long-term family friends of Mr Ryan. Mr John Ryan was the deceased's uncle and Ms Duncan was a long time business associate and friend of Mr Ryan assisting him in all aspects of his horse breeding investments and bloodstock activities.

There are no disputes between the beneficiaries as to how the estate is to be distributed. There have however been claims made by four persons who are not beneficiaries under the will.

Claims were made by Ms Gillian Crighton ("Ms Crighton"), Ms Mirka Christos (also known as Maria and Marie, to whom I will refer as "Ms Christos"), Ms Denise de Bono ("Ms de Bono") and the plaintiff Ms Janet Amprimo. Ms Christos has discontinued her proceedings and Ms Crighton's claim was resolved by the estate agreeing to pay her $20,000 inclusive of costs. Ms De Bono's claim was resolved by a payment of…

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 Amprimo v Wynn

Details

AGLC: Amprimo v Wynn [2014] NSWSC 991
Case: [2014] NSWSC 991
Decision Date: 24 July 2014

CaseChat Overview and Summary

In the case of Amprimo v Wynn, the plaintiff sought a declaration that the will of the deceased, Mr Wynn, was invalid and a family provision order. The dispute arose due to the plaintiff's claim for family provision, asserting that she was not an eligible person under the relevant legislation. The court was required to determine whether the plaintiff qualified as an eligible person for the purposes of making a family provision order. This involved examining whether the plaintiff was living in a de facto relationship with the deceased at the time of his death, or if she was living in a close personal relationship with him or was wholly or partly dependent on him.

The court examined the statutory definition of 'eligible person' and considered relevant case law. It found that the plaintiff did not meet the criteria for being in a de facto relationship with the deceased, nor was she in a close personal relationship with him. Additionally, the court determined that the plaintiff was not wholly or partly dependent on the deceased. The court concluded that the plaintiff was not an eligible person under the legislation, and therefore, she was not entitled to a family provision order.

The court dismissed the plaintiff's claim for a declaration that the will was invalid and her application for a family provision order. No further orders were made.

Orders