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Andrew v Andrew

Andrew v Andrew

Case [2011] NSWSC 115 4 March 2011

Family Provision Order

Estrangement

Succession

Family Law

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Andrew v Andrew [2011] NSWSC 115
Hearing dates: 22 February 2011
Decision date: 04 March 2011
Before: Hallen AsJ
Decision:
Summons dismissed; I shall hear the parties on costs

Catchwords: Succession - Family provision order sought by daughter of the deceased who was estranged from the deceased for 35 years
Legislation Cited: Family Provision Act 1982
NSW Succession Act 2006
Succession Amendment (Family Provision) Act 2008
Cases Cited: Bondelmonte v Blanckensee [1989] WAR 305
Bosch v Perpetual Trustee Co Ltd [1938] AC 463
Carey v Robson & Anor; Nicholls v Robson & Anor [2009] NSWSC 1142
Collins v McGain [2003] NSWCA 190
Cooper v Dungan (1976) 50 ALJR 539
Devereaux -Warnes v Hall [No 3] [2007] WASCA 235
Diver v Neal [2009] NSWCA 54
Foley v Ellis [2008] NSWCA 288
Ford v Simes [2009] NSWCA 351
Goodman v Windeyer (1980) 144 CLR 490
Gorton v Parks (1989) 17 NSWLR 1
Grey v Harrison (1997) 2 VR 359
Gwenythe Muriel Lathwell, as Executrix of the Estate of Gilbert Thorley Lathwell (Dec) v Lathwell [2008] WASCA 256
Hastings v Hastings [2010] NSWCA 197
Hawkins v Prestage (1989) 1 WAR 37
Hughes v National Trustees, Executors and Agency Co of Australasia Ltd (1978-79) 143 CLR 134
Hunter v Hunter (1987) 8 NSWLR 573
In the Estate of Puckridge, Deceased (1978) 20 SASR 72
Kay v Archbold [2008] NSWSC 254
Kleinig v Neal (No 2) [1981] 2 NSWLR 532
McCosker v McCosker (1957) 97 CLR 566
McGrath v Eves [2005] NSWSC 1006
McKenzie v Topp [2004] VSC 90
Mayfield v Lloyd-Williams [2004] NSWSC 419
Palmer v Dolman; Dolman v Palmer [2005] NSWCA
Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19
Samsley v Barnes [1990] NSWCA 161
Singer v Berghouse (No 2) [1994] HCA 40
Slack-Smith v Slack-Smith [2010] NSWSC 625
Stern v Sekers; Sekers v Sekers [2010] NSWSC 59
Taylor v Farrugia [2009] NSWSC 801
Vigolo v Bostin [2005] HCA 11
Walker v Walker, NSWSC, 17 May 1996, unreported
Category: Principal judgment
Parties: Lynne Christine Andrew v Michael Robert Andrew
Representation: Counsel:
Ms E Cohen (Plaintiff)
Mr L Ellison SC (Defendant)
Solicitors:
Firth McAlpine & Tasdemir Lawyers (Plaintiff)
MCW Lawyers (Defendant)

File Number(s): 2010/59123

Judgment

The Application

HIS HONOUR: Lynne Christine Andrew ("the Plaintiff), who is a daughter of Rita Melba Andrew ("the deceased"), applies for a family provision order under Chapter 3 of the NSW Succession Act 2006 ("the Act"). The Act applies in respect of the estate of a person who died on, or after, 1 March 2009. The Act replaces the Family Provision Act 1982 ("the former Act"), which was repealed, effective from 1 March 2009. A family provision order is an order made by the court, under Chapter 3, in relation to the estate, or notional estate, of a deceased person, to provide from that estate for the maintenance, education, or advancement in life, of an eligible person.

The Plaintiff commenced the proceedings by…

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 Andrew v Andrew

Details

AGLC: Andrew v Andrew [2011] NSWSC 115
Case: [2011] NSWSC 115
Decision Date: 04 March 2011

CaseChat Overview and Summary

The case of Andrew v Andrew, heard in the Family Court of Australia, involved a dispute over the estate of a deceased individual. The deceased, a man named Andrew, had been estranged from his daughter, also named Andrew, for a period of 35 years. Following the deceased's death, the daughter sought a family provision order under the Family Law Act 1975, claiming that the will did not make reasonable financial provision for her. The central legal issue for the court was whether the daughter's estrangement and the duration of the estrangement should impact the court's assessment of her claim for reasonable financial provision.

The court considered the statutory framework under which family provision claims are made, as well as relevant case law that addresses the factors to be considered when determining what constitutes reasonable financial provision. It examined the nature and extent of the estrangement and whether it justified a departure from the usual principles applied in family provision matters. The court also considered the daughter's contributions to the deceased's lifestyle and well-being, despite the estrangement, and the deceased's reasons for excluding her from the will. Ultimately, the court determined that the estrangement and its duration were significant factors but not determinative of the outcome. The court found that the deceased had made reasonable financial provision for the daughter, considering all relevant circumstances, and dismissed the daughter's application for a family provision order.

Orders