Armstrong v Armstrong - [1999] NSWSC 764

CITATION: Armstrong v Armstrong [1999] NSWSC 764

CURRENT JURISDICTION: Equity Division

FILE NUMBER(S): 4192/98

HEARING DATE(S): 23 July 1999

JUDGMENT DATE:
23 July 1999

PARTIES :

Naomi Anne Armstrong (P)
Gloria Dawn Armstrong (D)

JUDGMENT OF: Master McLaughlin

COUNSEL : Mr. W. S. Willmott (P)
Mr. R. J. Powell (D)

SOLICITORS: Eric Butler Solicitors (P)
Cleaves Mallik Gibbs Solicitors (D)

CATCHWORDS:

DECISION:

SUPREME COURT OF
NEW SOUTH WALES
EQUITY DIVISION
MASTER McLAUGHLIN
Friday, 23 July 1999
4192/98 NAOMI ANNE ARMSTRONG -v- GLORIA DAWN ARMSTRONG
JUDGMENT
1 MASTER: These are proceedings under the Family Provision Act 1982. 2 By summons filed on 7 October 1998, the plaintiff seeks an order for provision for her maintenance, education and advancement in life out of the estate of her late father David Murray Armstrong (to whom I will refer as the “deceased”) 3 The deceased died, aged about 58, on 14 January 1998. He left a will made in July 1996, and letters of administration with such will annexed were being granted on 20 July 1998 to Gloria Dawn Armstrong, a beneficiary named in the will, who is the defendant to the present proceedings. The executors designated in that will, which appears to have been prepared by the deceased personally without the benefit of legal advice, renounced probate. 4 By that will, the deceased left to the plaintiff a legacy of $5,000. He gave a collection of gramophone records to his niece, and gave the residue of his estate to the defendant. 5 The defendant is the de facto widow of the deceased. They lived together for a period of about four years, or perhaps a little less, up to the time of his death. The assets in the estate consisted essentially of the entitlements to the deceased resulting from his employment with the Newcastle City Council, those entitlements (including accrued holiday pay, long service leave, sick leave) being in the amount of $50,601, together with the interest of the deceased in the estate of his late father, Robert Murray Armstrong, that interest consisting of a one third share in certain real estate situated at Cessnock Street, Cessnock. I will later return to a consideration of the value of that one third interest. 6 It is also of relevance that, in consequence of the death of the deceased, the defendant received a superannuation benefit, which however came to her directly and did not form part of the estate of the deceased. That superannuation benefit was in the sum of $159,555. 7 After allowance had been made for the payment of the legacy to the plaintiff, and for the payment of various costs and administrative expenses relating to the estate of the deceased, the present assets of that estate consist of moneys totalling $36,082 and the interest of the deceased in the estate of his late father. 8 It will be appreciated that there must be paid out of the assets of the estate, the costs of the defendant of the present proceedings, estimated to…

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 Armstrong v Armstrong

Details

AGLC: Armstrong v Armstrong [1999] NSWSC 764
Case: [1999] NSWSC 764
Decision Date: 23 July 1999

CaseChat Overview and Summary

In the Supreme Court of New South Wales, Naomi Anne Armstrong sought additional provision for her maintenance, education, and advancement from the estate of her late father, David Murray Armstrong, pursuant to the Family Provision Act 1982. The case involved determining the extent of the plaintiff's entitlement to additional provision beyond the $5,000 legacy she had already received from her father's will. The primary legal issues included assessing the financial needs of the plaintiff and her de facto spouse, considering the financial circumstances of the defendant, who was the de facto widow and primary beneficiary under the will, and evaluating the assets available in the estate.

The court considered the plaintiff's financial situation, noting that she had minimal income since maternity leave, while her de facto spouse's income, though adequate, had to support their family, including recent house payments. The court also examined the defendant's financial status, who had spent her deceased husband's superannuation benefit of $159,555 on various items, including a new van, a car, furniture, and gifts to her children. The court further considered the estate's assets, primarily the deceased's interest in his late father's estate, valued at $220,000, though an oral offer of $470,000 had been received.

The court concluded that the plaintiff had established a need for additional provision from her father's estate, but any additional provision should not significantly reduce the benefit received by the defendant. Therefore, the court ordered that the plaintiff receive a further legacy of $40,000 from her father's interest in his late father's estate. The court also ordered that the costs of both parties be paid from the estate, with the plaintiff's costs on a party-and-party basis and the defendant's costs on an indemnity basis.

Orders