Barnsley v Riakos (The Estate of Ralph Hodgkinson Clark, late of Vaucluse) - [2011] NSWSC 635

Supreme Court

New South Wales

Medium Neutral Citation: Barnsley v Riakos (The Estate of Ralph Hodgkinson Clark, late of Vaucluse) [2011] NSWSC 635
Hearing dates: 24 and 25 May 2011
Decision date: 11 July 2011
Jurisdiction: Equity Division
Before: Associate Justice Macready
Decision:
(1) The plaintiff is to receive a legacy out of the estate of the Deceased of $825,000.
(2) The plaintiff's costs on the ordinary basis and the defendants' costs on the indemnity basis are to be paid or retained out of the estate of the Deceased.
(3) Interest is to run on the legacy at the rate provided in the Probate and Administration Act 1898 from three months after the date of these orders.

Catchwords: WILLS AND ESTATES - family provision claim - competing claims or Interests - relationship with the Deceased - contributions by the Applicant - whether applicant and Deceased were in a defacto relationship - no provision had been made for applicant in Deceased's will - held that applicant in defacto relationship with Deceased for 16 years - Deceased's daughter, step-daughter grandchildren and step - grandchildren beneficiaries under the will - Deceased's step daughter executor but she and her children had been estranged from the Deceased for 9 years prior to his death - estrangement occurred over a Robert Mapplethorpe photography book that Deceased had lent to step-granddaughter - estrangement not fatal to step-daughter and step-grandchildren's claim - provision made for applicant defacto.
Legislation Cited: Succession Act 2006
Interpretation Act 1987
Probate and Administration Act 1898
Cases Cited: Bladwell v Davis [2004] NSWCA 170
Dunk v Public Trustee [2003] NSWSC 37
Elliott v Elliott (New South Wales Supreme Court, 18 May 1984, unreported)
Golosky v Golosky (5 October 1993, unreported)
Luciano v Rosenblum (1985) 2 NSWLR 65
Marshall v Carruthers [2002] NSWCA 47
Ward v Anderson (New South Wales Supreme Court, Waddell CJ in Eq, 6 June 1989, unreported)
Texts Cited: Encyclopaedia Britannica 1990 Britannica Book of the Year (1990)
Category: Principal judgment
Parties: Plaintiff - Susan Jane Barnsley
Defendant - Suzanne Riakos
Representation: Counsel:
Plaintiff - Mr DM Flaherty
Defendant - Mr JE Armfield
Solicitors:
Plaintiff - Swaab Attorneys
Defendant - Butlers Will Dispute Lawyers

File Number(s): 2010/00063861

Judgment

HIS HONOUR: This is an application under the Succession Act 2006 for provision out of the estate of the late Ralph Hodgkinson Clark who died on 17 July 2009.

Susan Barnsley claims that she lived in a de facto relationship with the Deceased for the last 16 years prior to his death.

The proceedings were also heard with proceedings 2010/236325 by Mary Clark a former wife of the Deceased. After the conclusion of the hearing of both proceedings Mary Clark's proceedings were settled on terms that she should receive a legacy of $120,000 inclusive of costs.

Will of the Deceased

The Deceased made his last will on 21 May 1998. The Deceased left a legacy of $20,000 to his sister Rosemary Allen and a legacy of $5,000 to his step-daughter, Suzanne Riakos, who 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.

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Details

AGLC: Barnsley v Riakos (The Estate of Ralph Hodgkinson Clark, late of Vaucluse) [2011] NSWSC 635
Case: [2011] NSWSC 635
Decision Date: 11 July 2011

CaseChat Overview and Summary

In the case of Barnsley v Riakos (The Estate of Ralph Hodgkinson Clark, late of Vaucluse), the deceased's estate is the subject of a family provision claim. The applicant, Barnsley, contends that she was in a de facto relationship with the deceased for 16 years and seeks to be provided for under his will. The deceased's daughter and her children, who are beneficiaries under the will, argue in opposition to the claim. The Family Provision Act 1969 provides the statutory framework for the court's consideration of the application.

The court was required to determine whether the applicant and the deceased were in a de facto relationship and, if so, whether the applicant's claim should be granted. The court examined the nature and duration of the relationship, the extent of the applicant's contributions to the deceased's estate, and the circumstances of the deceased's family, including the estrangement of his step-daughter and her children. The court also had to consider the deceased's will, which made no provision for the applicant.

The court found that the applicant and the deceased were in a de facto relationship for 16 years, and that the estrangement between the deceased and his step-daughter and her children did not affect their entitlement to benefit from the estate. The court concluded that the applicant's claim should be granted, and ordered that the deceased's estate be divided among the beneficiaries, with the applicant receiving a portion of the estate in recognition of her relationship with the deceased. The court also noted that the deceased's step-daughter, who was the executor of the will, had been estranged from the deceased for nine years prior to his death due to a dispute over a Robert Mapplethorpe photography book that the deceased had lent to the step-granddaughter. However, the estrangement did not affect her entitlement to benefit from the estate.

Orders