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Bayley v Sivewright; Sivewright v Sivewright (No 2)

Bayley v Sivewright; Sivewright v Sivewright (No 2)

Case [2021] NSWSC 666 8 June 2021

Family Provision

Claims by Non-Dependents

Insurance and Superannuation Payouts

Succession Law

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Supreme Court

New South Wales

Medium Neutral Citation: Bayley v Sivewright; Sivewright v Sivewright (No 2) [2021] NSWSC 666
Hearing dates: 8, 9 and 11 February 2021; Final written submissions received 16 April 2021
Decision date: 08 June 2021
Jurisdiction: Equity - Family Provision List
Before: Kunc J
Decision:
Claims for provision dismissed

Catchwords:
SUCCESSION — Family provision — Claims by partner and niece — Deceased’s partner received substantial insurance and superannuation payout and niece received estate — No issues of principle

Legislation Cited:
Succession Act 2006 (NSW)

Cases Cited:
Bayley v Sivewright; Sivewright v Sivewright [2021] NSWSC 134
Bladwell v Davis [2004] NSWCA 170
Burke v Burke [2015] NSWCA 195
Golosky v Golosky [1993] NSWCA 111
Ikonomou v Panagopoulos [2017] NSWSC 1805
Luciano v Rosenblum (1985) 2 NSWLR 65
Marshall v Carruthers [2002] NSWCA 47
Schneider v Kemeny; Kemeny v Schneider [2021] NSWSC 524
Slack v Rogan [2013] NSWSC 522
Smith v Johnson [2015] NSWCA 297
Stienmetz v Shannon (2019) 99 NSWLR 687; [2019] NSWCA 114
Vasiljev v Public Trustee [1974] 2 NSWLR 497

Category: Principal judgment
Parties: Leon Bayley (First Plaintiff)
Sarah Sivewright (Second Plaintiff)
Ian Sivewright (Defendant)
Representation:
Counsel:

A Hill (First Plaintiff)
D Liebhold (Second Plaintiff)
C Lawrence (Defendant)

Solicitors:
Dakin Law (First Plaintiff)
Gallagher Solicitors and Conveyancers (Second Plaintiff)
David Hunter (Defendant)

File Number(s): 2019/105009; 2019/176695
Publication restriction: Nil

Judgment

This judgment resolves the family provision claims in two sets of proceedings about the estate of the late Stephen William Sivewright brought under the Succession Act 2006 (NSW) (the Act).
This judgment assumes familiarity with the Court’s first judgment in this matter, delivered on 23 February 2021: Bayley v Sivewright; Sivewright v Sivewright [2021] NSWSC 134 (the First Judgment). Defined terms in that judgment have the same meaning in this judgment. For convenience and without disrespect, I again refer to the parties and other family members by their given names.
In the First Judgment, the Court determined that the proceeds of the Insurance Policy did not form part of the Estate and belonged to Ian absolutely. The parties agreed that the Court should determine the balance of the proceedings on the papers with the benefit of further written submissions. Those submissions were provided over the course of March and April 2021.
The salient facts were not in dispute. The Court’s decision may be summarised as follows:

There were two people for whom Stephen owed a moral obligation to make provision: Leon and Sarah. Stephen’s testamentary intention was for those obligations to be satisfied by Leon receiving a substantial insurance and superannuation payout and for Sarah to receive the Estate, which in substance comprised his interest in farming properties and stock. While on the day of his death Stephen hoped to provide more for each of them from the Insurance Policy if Ian agreed, Stephen did not intend what he had already provided for Leon and Sarah to be reduced.

Stephen undoubtedly had a moral obligation to provide for Leon as his partner of 13…

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 Bayley v Sivewright; Sivewright v Sivewright (No 2)

Details

AGLC: Bayley v Sivewright; Sivewright v Sivewright (No 2) [2021] NSWSC 666
Case: [2021] NSWSC 666
Decision Date: 08 June 2021

CaseChat Overview and Summary

The case involved claims by the deceased's partner, Mr Bayley, and his niece, Ms Sivewright, for family provision orders against the estate of the deceased, Ms Sivewright. The deceased had left her estate to her niece, while her partner had received substantial amounts from life insurance policies and superannuation. The court was required to decide whether the claims for family provision orders by the partner and the niece were justified.

The court considered whether the deceased had made adequate provision for the partner's maintenance, and whether the deceased had any valid reason for leaving the estate to the niece. The court found that the deceased had made adequate provision for the partner, who had received substantial amounts from life insurance policies and superannuation. The court also found that the deceased had valid reasons for leaving the estate to her niece, and that there were no issues of principle that would warrant the court making a family provision order in favour of the partner.

The court dismissed the claims for family provision orders by both the partner and the niece. The court found that the deceased had made adequate provision for the partner, who had received substantial amounts from life insurance policies and superannuation. The court also found that the deceased had valid reasons for leaving the estate to her niece, and that there were no issues of principle that would warrant the court making a family provision order in favour of the partner or the niece.

The court made no orders in favour of either the partner or the niece. The court found that the deceased had made adequate provision for the partner, who had received substantial amounts from life insurance policies and superannuation. The court also found that the deceased had valid reasons for leaving the estate to her niece, and that there were no issues of principle that would warrant the court making a family provision order in favour of the partner or the niece.

Orders