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Baldwin v Favre

Baldwin v Favre

Case [2025] NSWSC 345 10 April 2025

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Supreme Court

New South Wales

Medium Neutral Citation: Baldwin v Favre [2025] NSWSC 345
Hearing dates: 8, 9 and 10 October 2024
Date of orders: 10 April 2025
Decision date: 10 April 2025
Jurisdiction: Equity – Probate and Family Provision List – Family Provision
Before: McHugh JA
Decision:
(1)   Direct the defendant:
(a)   by 5pm on 15 April 2025 to notify each of Louise Anne Gaggin, William “Billy” Stanley Fisher, and Madison Jade Fisher of [308]-[321] of the Court’s reasons; and
(b) by 5pm on 22 April 2025 to inform the Court and the plaintiff whether any of the defendant, Ms Gaggin, Mr Fisher or Ms Fisher wishes to submit that the Court should make an order adjusting the interests of the residuary beneficiaries pursuant to s 66(2) of the Succession Act 2006 (NSW).
(2) In the event that any of the persons identified in order 1(b) so wishes, direct that by 5pm on 29 April 2025 they file and serve submissions not exceeding 3 pages in length on the question whether, and in what terms, the Court should make a s 66(2) order.
(3)   In the event that none of those persons so wishes, direct the parties by 5pm on 29 April 2025 to bring in an agreed form of order (save as to costs) to give effect to the provision I have decided to make.
(4)   Direct the parties by 5pm on 29 April 2025 to file and serve by exchange submissions not exceeding three pages in length on costs.

Catchwords:
SUCCESSION — Family provision — Claim by de facto spouse pursuant to s 59, Succession Act 2006 (NSW) — Whether will made adequate provision for the proper maintenance, education or advancement in life of the plaintiff — Where plaintiff given portable life estate in home shared with deceased — Where plaintiff sought in lieu absolute ownership of other real property in the estate — Where provision inadequate
SUCCESSION — Family provision — Matters in s 60(2) — Other beneficiaries’ competing claims on the estate — Relevance of historical abuse to the nature and extent of obligations owed by the deceased person to beneficiaries — Weight to be given to testator’s judgment
SUCCESSION — Family provision — Whether to exercise power in s 66(2) to make additional orders to adjust the interests of other beneficiaries — Where question not sufficiently addressed in parties’ submissions

Legislation Cited:
Succession Act 2006 (NSW), ss 31, 57, 59, 60, 66
Property (Relationships) Act 1984 (NSW)

Cases Cited:
Bassett v Bassett [2021] NSWCA 320
Bowditch v NSW Trustee and Guardian [2012] NSWSC 275
Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392
Curran v Harvey [2012] NSWSC 276
Elliott v Elliott (Supreme Court (NSW), 18 May 1984, unrep)
Jones (a pseudonym) v Smith (a pseudonym) [2016] VSCA 178; (2016) 15 ASTLR 402
Luciano v Rosenblum (1985) 2 NSWLR 65
Lodin v Lodin (2017) 16 ASTLR 576; [2017] NSWCA 327
McCosker v McCosker [1957] HCA 82; (1957) 97 CLR…

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 Baldwin v Favre

Details

AGLC: Baldwin v Favre [2025] NSWSC 345
Case: [2025] NSWSC 345
Decision Date: 10 April 2025

CaseChat Overview and Summary

The dispute in Baldwin v Favre arose from a family provision claim by the plaintiff, the de facto spouse of the deceased, pursuant to section 59 of the Succession Act 2006 (NSW). The plaintiff contended that the will made by the deceased did not make adequate provision for her proper maintenance, education or advancement in life. The deceased had left the plaintiff a portable life estate in the family home, while the plaintiff sought absolute ownership of another property within the estate. The court was tasked with determining whether the provision made for the plaintiff was adequate and whether the court should exercise its power under section 66(2) of the Act to make additional orders to adjust the interests of other beneficiaries.

The legal issues before the court involved interpreting the meaning of 'adequate provision' under section 59 of the Succession Act 2006 (NSW) and weighing the competing claims of other beneficiaries. Additionally, the court had to consider the relevance of historical abuse in determining the obligations owed by the deceased to the beneficiaries and the weight to be given to the deceased's judgment in making provisions within the will. The court also had to decide whether to exercise its discretion to make additional orders under section 66(2) to adjust the interests of other beneficiaries, a matter not fully addressed in the parties' submissions.

In its reasoning, the court found that the provision made for the plaintiff was inadequate as it did not sufficiently cater to her maintenance, education, or advancement in life. The court highlighted the importance of the deceased's judgment but noted that it was not an absolute determinant in the court's discretion. The court also considered the competing claims of other beneficiaries, including the relevance of historical abuse, but ultimately concluded that the plaintiff's claim was valid. The court, however, did not exercise its power under section 66(2) to make additional orders as the matter had not been sufficiently addressed in the submissions. The court's decision was to grant the plaintiff's claim, making orders to adjust the interests of the beneficiaries as appropriate.

Orders