CATCHWORDS: SUCCESSION – Family provision and maintenance – jurisdiction – persons in whose favour and order may be made – children – generally – where no other eligible person to claim – Family Provision Act 1982, s7, s9 SUCCESSION – Family provision and maintenance – practice – procedure, orders and other matters – orders – order enforcing compromise agreement SUCCESSION – Family provision and maintenance – principles upon which relief granted – circumstances to be considered – where agreement to compromise reached – circumstances relevant in approving agreement – Family Provision Act 1982, s7, s9
TEXTS CITED: de Groot & Nickel, Family Provision in Australia 3rd ed, Lexis Nexis Butterworths, Chatswood, 2007
DECISION: Appeal dismissed with costs
JUDGMENT:
IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL
CA 40387/2007 SC 5562/2006
MASON P HODGSON JA BRYSON AJA
Friday 23 May 2008
Peter Douglas BARTLETT v Katherine COOMBER & Anor
The deceased was the father of the first respondent. He never married and the first respondent was his only child. The first respondent had no contact with the deceased from her birth in February 1994 to February 2004, although the deceased did provide for the first respondent by way of child support payments. There was one visit between the first respondent and the deceased in July 2004 and the deceased died on 16 May 2005.
The deceased’s will was made on 2 September 2000. The second respondent was appointed as his executrix and his entire estate (valued in excess of $1 million) was left to his mother, Margaret Thomas. The first respondent was expressly excluded…
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
Bartlett v Coomber [2008] NSWCA 100
Case
[2008] NSWCA 100
Decision Date
CaseChat Overview and Summary
This case concerned an appeal to the Supreme Court of New South Wales regarding an order made under the *Family Provision Act 1982* (NSW). The dispute arose from an agreement to compromise a family provision claim brought by Ms Coomber, the respondent, against the estate of the deceased. The appellant, Mr Bartlett, was not a party to the original compromise agreement but sought to challenge the court's approval of it.
The central legal issues before the Court of Appeal were whether the primary judge erred in approving the compromise agreement and making an order based upon it, and whether the provision made for Ms Coomber was adequate for her maintenance, education, and advancement in life, having regard to the circumstances at the time of the order. The Court also considered the scope of the court's discretion under sections 7 and 9 of the *Family Provision Act 1982* when approving compromise agreements in family provision claims, particularly when a party to the appeal was not an original party to the compromise.
The Court of Appeal, in dismissing the appeal, reasoned that a court may approve a compromise agreement if it falls within the range of possible outcomes of a contested hearing. The Court found that the appellant had not demonstrated that the compromise agreement was so far outside this range as to suggest an extraneous purpose. The judges emphasised that a party repenting of a compromise, or a non-party like the appellant challenging it, was insufficient grounds to overturn the primary judge's decision, especially when the primary judge had considered the relevant factors under the Act, including the needs of the eligible person and the circumstances surrounding the deceased's estate.
The appeal was dismissed with costs.
Orders
Orders of the court
Appeal dismissed with costs. IN THE SUPREME COURT OF NEW SOUTH WALES
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Experience of forensic contests of this nature shows that closer attention to the full ambit of a plaintiff’s needs is given when the time comes to prepare affidavits and, if necessary, supplement them with oral evidence in chief. I perceive that his Honour was adverting to this phenomenon in his observation that “[a]llowing for something for contingencies the most favourable outcome on the present evidence for the plaintiff is an award in the area of $200,000 to $250,000” (J45, emphasis added). This said, it was in my view unfortunate that his Honour expressed himself in those terms because they have been the trigger for the appellant’s argument that the reasoning contains an internal inconsistency. I do not in any event agree with his Honour’s conservative assessment of the plaintiff’s ultimate prospects, even confining oneself to the case foreshadowed in the letter from PDP. Her interests in maintenance, education and advancement in life deserved to be the paramount focus of attention in a substantial estate in which she was the only eligible claimant and in which the only beneficiary was the deceased’s aged mother who, as events turned out, died just over a month after her son. The plaintiff stood at the threshold of a life replete with contingencies. The parties stood at the threshold of litigation replete with contingencies, one of which was that a contested case could fall for determination by any one of a dozen or so judicial officers. Naturally, there will be situations where a court can be sufficiently satisfied that the proffered compromise agreement lies outside the range of possible outcomes and to such a degree that the proposed order should be regarded as giving effect to some purpose extraneous to those within the Act. But much more is required than that one party to the compromise has repented of it, a fortiori a non-party like the present appellant. The appeal should be dismissed with costs. HODGSON JA: I agree that the appeal should be dismissed with costs, and I agree substantially with the reasons of Mason P and Bryson AJA. I would make the following additional observations. The order made by the primary judge was made pursuant to s 7 of the Family Provision Act 1982 (the Act). It thus had to be justified as being “for such provision … as, in the opinion of the Court, ought, having regard to the circumstances at the time of the order is made, to be made for the maintenance, education or advancement in life of” Ms Coomber. It was also necessary that the Court be satisfied, in terms of s 9(2) of the Act, that “the provision (if any) made in favour of the eligible person by the deceased person either during the person’s lifetime or out of the person’s estate … is, at the time the court is determining whether or not to make such an order, inadequate for the proper maintenance, education and advancement in life of the eligible person.” Also relevant was s 9(3), which is in the following terms: (3)In determining what provision (if any) ought to be made in favour of an eligible person out of the estate or notional estate of a deceased person, the Court may take into consideration: (a) any contribution made by the eligible person, whether of a financial nature or not and whether by way of providing services of any kind or in any other manner, being a contribution directly or indirectly to:(i)the acquisition, conservation or improvement of property of the deceased person, or(ii)the welfare of the deceased person, including a contribution as a homemaker,(b) the character and conduct of the eligible person before and after the death of the deceased person,(c) circumstances existing before and after the death of the deceased person, and(d) any other matter which it considers relevant in the circumstances.