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Baker v Baker

Baker v Baker

Case [2024] NSWSC 559 13 May 2024

Family Provision

Notational Estate

Intention of Transaction

Disclosure Obligations

Succession Law

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Supreme Court

New South Wales

Medium Neutral Citation: Baker v Baker [2024] NSWSC 559
Hearing dates: 6 May 2024
Date of orders: 13 May 2024
Decision date: 13 May 2024
Jurisdiction: Equity
Before: Hammerschlag CJ in Eq
Decision:
Summons dismissed

Catchwords:
FAMILY PROVISION – Succession Act 2006 (NSW) ss 59, 70, 75, 80(2)(a) – Claims for family provision – Where plaintiffs fail to establish that the will did not make adequate provision for their maintenance, education or advancement in life – Notional estate order – Where the plaintiffs fail to establish, with respect to a relevant property transaction, that it was entered into with the intention, wholly or partly, of denying or limiting provision being made out of the estate – Necessity for a plaintiff to make full and frank disclosure of their financial and material circumstances – Remarks on the obligation on legal practitioners to ascertain whether, at or about the time of the hearing, there has been such a change – Failure to make disclosure – HELD proceedings dismissed

Legislation Cited:
Succession Act 2006 (NSW)

Cases Cited:
Barbuto v Barbuto [2019] NSWSC 1023
Bohen v Mitchelmore [2024] NSWSC 171
Cringle v Cringle [2018] NSWSC 1558
DJ Singh vDH Singh and Others [2018] NSWCA 30
Gorton v Parks (1989) 17 NSWLR 1
Hughes v National Trustees (1979) 143 CLR 134
Kastrounis v Foundouradakis [2012] NSWSC 264
McKenzie v Topp [2004] VSC 90
Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9
Singer vBerghouse (1994) 181 CLR 201
Srekovic v Srekovic [2018] NSWSC 1597
Steinmetz v Shannon [2019] 99 NSWLR 687
Stone v Stone [2019] NSWSC 233
Sung v Malaxos [2015] NSWSC 186
Vigolo v Bostin (2005) 221 CLR 191

Category: Principal judgment
Parties:
Annette Rita Baker (First Plaintiff)
Denise Maree Hughes (Second Plaintiff)
Allan Christopher Baker (Defendant)
Representation:
Counsel:
M Maconachie (First and Second Plaintiffs)
A Joseph (Defendant)
Solicitors:
Cox Law (First and Second Plaintiffs)
Lindeman Lawyers (Defendant)

File Number(s): 2023/00221392
Publication restriction: Nil

JUDGMENT

BACKGROUND

The integers which feed into the overall equation in this unfortunate family provision claim are somewhat simple.
The Deceased, Elizabeth Ann Baker, passed away on 1 July 2022 leaving an estate consisting of $214,585 in various bank accounts and a 2008 Subaru vehicle of little or no value. The net balance after payment of funeral expenses and the like, all of which is now in a Commonwealth Bank Business Transaction Account, is $203,045. In the scheme of things this is a modest estate.
The deceased is survived by two daughters and two sons (collectively, the children):

Robert James Baker (Robert) (now 67);

The First Plaintiff, Annette Rita Baker (Annette) (now 6);

The Second Plaintiff, Denise Maree Hughes (Denise) (now 65); and

The Defendant, Allan Christopher Baker (Chris also known as Allan), the youngest (the evidence does not reveal his age).

The contest is between Annette and Denise, on one hand, and Chris, on the other. Robert played no…

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 Baker v Baker

Details

AGLC: Baker v Baker [2024] NSWSC 559
Case: [2024] NSWSC 559
Decision Date: 13 May 2024

CaseChat Overview and Summary

In the matter of Baker v Baker, the plaintiffs sought family provision orders against the estate of the deceased, alleging that the will did not make adequate provision for their maintenance. The case was heard in the Supreme Court of New South Wales. The plaintiffs argued that the deceased's will had failed to provide adequately for their needs, and that a notional property transaction should be set aside as it was entered into with the intention of limiting the provision available from the estate. The defendants countered that the will made adequate provision for the plaintiffs and that any property transactions were legitimate and not intended to circumvent the provisions of the will.

The court was tasked with determining whether the will made adequate provision for the plaintiffs' maintenance, education, and advancement in life, and whether any property transactions were intended to deny or limit the provision available from the estate. The plaintiffs bore the onus of proving their claims, and the court was mindful of the necessity for full and frank disclosure of their financial circumstances. The court also considered the obligation on legal practitioners to ensure that any changes in the plaintiffs' circumstances were disclosed at or before the hearing.

In its judgment, the court found that the plaintiffs had failed to establish that the will did not make adequate provision for their maintenance. The court was not satisfied that the plaintiffs had demonstrated that the notional property transaction was entered into with the intention of limiting the provision available from the estate. The court emphasised the importance of full disclosure by the plaintiffs and noted that the failure to disclose certain financial information had prejudiced the defendants. Consequently, the plaintiffs' claims were dismissed.

Orders