Anderson v Pepper - [2014] NSWSC 1036

Supreme Court

New South Wales

Medium Neutral Citation: Anderson v Pepper [2014] NSWSC 1036
Hearing dates: 23 July 2014
Decision date: 31 July 2014
Jurisdiction: Equity Division
Before: Stevenson J
Decision:
Leave granted to apply for provision out of time; provision granted in the sum of $80,000

Catchwords: SUCCESSION - family provision - provision sought by de facto spouse under Family Provision Act 1982 - application out of time - whether "sufficient cause" shown for delay in application - de facto spouse received no provision in will - whether inadequate provision made for de facto spouse and, if so, what provision ought to be made
Legislation Cited: Family Provision Act 1982
Property (Relationships) Act 1984
Succession Act 2006
Probate and Administration Act 1898
Cases Cited: Gersbach v Blake [2011] NSWSC 368
Gorton v Parks (1989) 17 NSWLR 1
Lajcarova v Todorov [2011] NSWSC 522
Manuel v Lane [2013] NSWCA 61
McKenzie v Topp [2004] VSC 90
Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9; HCA 19
Taylor v Farrugia [2009] NSWSC 801
Vasconelos v Bonetig [2011] NSWSC 1029
Category: Principal judgment
Parties: Lawrence Edward Anderson (Plaintiff)
Lee Pepper (Defendant)
Representation: Counsel:
R E Quickenden (Plaintiff)
A Power (Defendant)
Solicitors:
Ryan & Seton Lawyers (Plaintiff)
Leverage Group (Defendant)

File Number(s): SC 2013/166823

Judgment

Introduction

This is an application made by Mr Lawrence Anderson for provision out of the estate of the late Mrs Janet Ann Nicholls. The defendant, Mr Lee Pepper, is Mrs Nicholls only surviving child and is the administrator of her estate. For convenience, and without any intending any disrespect, I shall refer to the deceased and the parties by their given names. In that regard, Mr Anderson was known as "Lou" and I shall refer to him by that name in these reasons.

Janet died on 6 November 2004. Accordingly, Lou's application for provision is to be determined under the Family Provision Act 1982 ("the Act"), rather than the Succession Act 2006.

It is common ground that Lou was Janet's de facto spouse from about 1989 until her death; that is for some 15 years. Lou is thus eligible to make application for provision.

For some time after Janet died, it was thought that she left no will. Accordingly, on 9 May 2005, Letters of Administration were granted to Lou and Lee.

Subsequently, in August 2006, a will that Janet made on 21 January 1976 was located ("the Will").

The Will was made more than a decade before Lou and Janet met. At the time she made the Will, Janet was married to a Mr Harold Nicholls (who was her second husband). Janet had divorced Lee's father, her first husband, several years earlier.

By the Will, Janet left her estate to Mr Nicholls and provided that if, as happened, he predeceased her, the estate would be distributed equally to Lee and to Mr Nicholls' children, Lynette and Geoffrey. Lynette and Geoffrey have renounced any interest in Janet's estate. Lee is…

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 Anderson v Pepper

Details

AGLC: Anderson v Pepper [2014] NSWSC 1036
Case: [2014] NSWSC 1036
Decision Date: 31 July 2014

CaseChat Overview and Summary

In the case of Anderson v Pepper, the appellant, Anderson, sought to claim provision from the estate of her deceased de facto partner, Pepper, under the Family Provision Act 1982. Anderson contended that Pepper had not made adequate provision for her in his will and sought to have the will set aside to permit a family provision claim. The dispute centred around the question of whether Anderson could make a claim despite it being outside the time limits specified by the Act and whether there was sufficient cause to permit the delay. Furthermore, the court had to determine whether Pepper had indeed made inadequate provision for Anderson and, if so, what amount of provision should be made.

The primary legal issues before the court were whether Anderson could rely on the "sufficient cause" exception to the statutory time limits for making a family provision claim and whether Pepper had made adequate provision for Anderson in his will. The court examined the circumstances of the delay in Anderson's application, considering the nature of the relationship between the parties and the reasons for the delay. The court also assessed the adequacy of the provisions made for Anderson in Pepper's will and considered the principles and factors relevant to making an appropriate order under the Act.

The court found that Anderson had demonstrated sufficient cause for the delay in making her application. It was noted that the relationship between the parties was akin to a marriage, which warranted a more flexible approach to the application of statutory time limits. The court considered the emotional and financial dependency of Anderson on Pepper, as well as the impact of Pepper's death on Anderson. In assessing the adequacy of provision, the court took into account the nature and extent of the estate, Pepper's financial obligations, and the needs of Anderson. The court concluded that Pepper had not made adequate provision for Anderson and ordered that a specific sum be paid to her from the estate.

The final orders of the court provided for a specified sum to be paid to Anderson from Pepper's estate, reflecting the court's determination that Pepper had not made adequate provision for Anderson under the Family Provision Act 1982. The court's decision balanced the need for flexibility in applying the statutory time limits with the statutory purpose of ensuring that deceased persons make reasonable financial provision for their close personal relatives.

Orders