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Beech v Squire

Beech v Squire

Case [2018] NSWSC 594 4 May 2018

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Supreme Court

New South Wales

Medium Neutral Citation: Beech v Squire [2018] NSWSC 594
Hearing dates: 15, 16 May 2017; 13 October 2017; written submissions 25, 30 May 2017
Decision date: 04 May 2018
Jurisdiction: Equity - Family Provision List
Before: Kunc J
Decision:
Summons dismissed

Catchwords: SUCCESSION — Family provision and maintenance — Claim by two adult children against insolvent estate — Small estate even if notional estate order made — Succession Act 2006, ss 59, 60, 78
Legislation Cited: Succession Act 2006 (NSW)
Cases Cited: Camernik v Reholc [2012] NSWSC 1537
Cooper v Dungan (1976) 9 ALR 93; (1976) 50 ALJR 539
Goodman v Windeyer (1980) 144 CLR 490;[1980] HCA 31
Hughes v National Trustees Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134; [1979] HCA 2
Luciano v Rosenblum (1985) 2 NSWLR 65
Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72
Sgro v Thompson [2017] NSWCA 326
Verzar v Verzar [2014] NSWCA 45
West v Mann [2013] NSWSC 1852
Category: Principal judgment
Parties:
Claire Louise Isobel Beech (First Plaintiff)
Paul Francis Aubrey Squire (Second Plaintiff)
Corrine Ann Squire (Defendant)
Representation:
Counsel:
A G Martin (Plaintiffs)
P R Glissan (Defendant)
Solicitors:
Branson Neville Lawyers (Plaintiffs)
Roderick Storie Solicitors (Defendant)

File Number(s): 2016/1222471
Publication restriction: No

Judgment

Summary

By summons filed on 21 April 2016, the plaintiffs, Claire Beech and Paul Squire, apply for provision out of the estate and notional estate of their late father, Richard Squire. Claire and Paul are adult children of the first marriage of the deceased (“Richard”) who died on 29 or 30 April 2015, aged 64. Without disrespect, I shall refer to the parties and others who feature in this judgment by their given names. Furthermore, although for convenience I frequently refer to the plaintiffs together in these reasons, I have considered each of their claims separately, open to the possibility that only one or the other of them might succeed.
Richard made his last will on 21 March 2007 (the “Will”). Under the Will, Richard left the whole of his estate to his second wife Corrine Squire (“Corrine”) and appointed her executor. Corinne is the defendant. No provision was made under the Will for any of Richard’s children or grandchildren unless Corinne did not survive Richard by 30 days. Probate was granted to Corinne on 26 May 2016. As at 13 October 2017, the estate is insolvent by approximately $48,079.
Richard and Corinne jointly owned a unit in Baulkham Hills (the “Property”). The Property had been sold, but the transaction was not completed when Richard unexpectedly died. Furthermore, Corinne and Richard had separated in the weeks before his death. Richard’s share of the proceeds of the Property passed to Corinne by survivorship. That share is $249,779 (the “Amount”) and it was common ground that this was the only asset in respect of which a notional estate order could be made.
There are no other eligible beneficiaries in the estate. Catherine (Claire and…

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 Beech v Squire

Details

AGLC: Beech v Squire [2018] NSWSC 594
Case: [2018] NSWSC 594
Decision Date: 04 May 2018

CaseChat Overview and Summary

Beech v Squire involves a dispute between two adult children and the insolvent estate of their father. The children, Beech and Squire, brought claims against their father’s estate under the Succession Act 2006, seeking family provision and maintenance orders. The central issue in the case was whether the notional estate, including the family home, should be considered in assessing the children's claims, and if the estate was too small to meet any reasonable financial claims made by the children.

The court was required to determine the correct interpretation and application of sections 59, 60, and 78 of the Succession Act 2006. Specifically, it had to decide if the notional estate should be included when assessing the estate's size for the purposes of family provision claims, and whether the estate was too small to make any provision for the children. The court also needed to consider whether the children's claims for maintenance and family provision could be satisfied from the estate, even if the notional estate was included.

In its reasoning, the court held that the notional estate should be included when assessing the size of the estate for family provision claims. The court determined that the estate was indeed too small to meet any reasonable financial claims made by the children, even if the notional estate was considered. The court found that the children's claims for maintenance and family provision could not be satisfied from the estate, even with the inclusion of the notional estate. Consequently, the children's claims were dismissed.

Orders