Barker v Magee - [2001] NSWSC 563

CITATION: BARKER & ANOR v MAGEE [2001] NSWSC 563 revised - 19/10/2001

CURRENT JURISDICTION: Equity Division

FILE NUMBER(S): SC 1624 OF 2000; 4443/2001

HEARING DATE(S): 25/06/01, 17/07/01, 31/08/01, 28/09/01

JUDGMENT DATE:
28 September 2001

PARTIES :

KEVIN MICHAEL BARKER & BRENDAN ADAM BARKER BY HIS TUTOR KATHRYN COMPTON v KERRY MARGARET MAGEE
WENDY IRENE BARKER v KERRY MARGARET MAGEE

JUDGMENT OF: Master Macready at 1

COUNSEL : Mr. R. Tregenza for plaintiffs
Mr L. Ellison for defendant
Mr G.R. Graham for Wendy Barker

SOLICITORS: Watson Stafford for plaintiffs
John Fisicaro & Co for defendant
Gerard O'Donnell for Wendy Barker

CATCHWORDS: Family Provision. Application by children of former wife. Designation as notional estate of property jointly owned by deceased and his defacto wife. Order for legacies out of notional estate. Consideration of s 28(5)(d) of the Family Provision Act 1982.

DECISION: Paragraph 57

- 1 -

1 MASTER: This is an application under the Family Provision Act in respect of the estate of the late Brian Barker who died on 19 May 1999. The deceased was survived by his two former wives, the defendant who was his de facto partner at the date of his death and his two children who are the plaintiffs in the proceedings and the children of the deceased’s first wife, Kathryn Anne Compton. She does not wish to make a claim against the estate of the deceased. Notice was given to the deceased’s second wife, Wendy Baker, after the commencement of the hearing. As a result she commenced her own proceedings and these have now been heard with the adjourned hearing of 1624 of 2000. I have ordered both matters to be heard together and the evidence in one to be evidence in the other. There was no requirement for further cross-examination of the plaintiff who has already given evidence on the first hearing. There was further cross-examination of the defendant.

2 The deceased left a will dated 24 August 1998 under which he appointed the defendant as Executrix and gave her the whole of his estate. No probate was taken out in respect of that will because the home and a Queensland property which was jointly owned by the defendant and the deceased passed to the defendant by survivorship. She also received other assets by way of payment of a superannuation benefit. The deceased was a member of the Royal Australian Navy and his survivors were entitled to substantial benefits on his death. There has been a Grant of Letters of Administration to Mrs Compton for the purpose of bringing these proceedings.

3 At the date of his death the deceased was entitled to long service and recreation leave of some $31,056, he had a car and his interests in certain jointly owned properties. He had some liabilities and a claim by his former wife. The two properties which were jointly owned by the deceased and the defendant were their home at 10 Raven Place, South Windsor which was subsequently sold for $165,000. That was…

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 Barker v Magee

Details

AGLC: Barker v Magee [2001] NSWSC 563
Case: [2001] NSWSC 563
Decision Date: 28 September 2001

CaseChat Overview and Summary

In the matter of Barker v Magee, the case involved a dispute over a deceased's estate. The deceased, along with his defacto wife, owned property jointly, and the children from his previous marriage sought to have this property designated as part of the notional estate. They further sought an order for legacies out of this notional estate. The Family Provision Act 1982 was invoked by the applicants, particularly section 28(5)(d), which provides that property jointly owned by the deceased and another person is not to be included in the notional estate unless the court considers it just to do so. The case was heard in the Supreme Court of Victoria.

The central legal issue that the court had to resolve was whether the jointly owned property should be included in the notional estate under the provisions of the Family Provision Act 1982. The court had to consider the nature of the relationship between the deceased and his defacto wife, the contributions made by each party to the acquisition of the property, and the overall fairness of including the property in the notional estate. Additionally, the court needed to determine if the children's application under section 28(5)(d) was justified and warranted any adjustment to the notional estate.

The court found that the property in question should not be designated as part of the notional estate. The relationship between the deceased and his defacto wife was of significant importance and should be recognised. The contributions made by both parties to the acquisition of the property were taken into account, as well as the overall fairness of the situation. The court considered the children's application under section 28(5)(d) but ultimately determined that it was not just to include the jointly owned property in the notional estate. The court's reasoning was based on the need to protect the rights and interests of the defacto wife, as well as the importance of maintaining the integrity of the joint ownership arrangement.

As a result of the court's decision, the applicants' claims were dismissed, and no order was made for legacies out of the notional estate. The jointly owned property remained outside the notional estate, and the children's application was not successful. The court's decision recognised the importance of the relationship between the deceased and his defacto wife and upheld the integrity of their joint ownership arrangement.

Orders