Behrens v Behrens - [2020] NSWSC 1566

Supreme Court

New South Wales

Medium Neutral Citation: Behrens v Behrens [2020] NSWSC 1566
Hearing dates: 24 September 2020
Date of orders: 30 October 2020
Decision date: 30 October 2020
Jurisdiction: Equity - Family Provision List
Before: Rein J
Decision:
See [24]-[26]

Catchwords:
SUCCESSION – Family provision – Claim by adult child for provision from the deceased’s estate under Succession Act 2006 (NSW), Ch 3 – Small estate – Adult son made family provision claim against deceased mother’s estate – The son had a history of violence towards family members, and had been estranged from his mother for more than 25 years before her death – The mother’s will left everything to her two adult daughters (the first and second defendants) and appointed them as trustees and executors – The main asset of the mother’s estate was a one fifth share in her father’s estate, the principal asset of which was a property in Belfield NSW; the mother’s one fifth share in her father’s estate did not vest in her estate until after her death (because, in addition to her one fifth share, she was granted a life interest in the Belfield property) – the son’s claim against the mother’s estate was partly based on an assertion that he contributed to the value of the Belfield property, both when his grandfather owned it and when his mother had a life interest in it, although the extent and value of his contribution was contested by the second defendant and was unable to be quantified – Held: the mother was under no obligation to provide for her son in light of their 25 year estrangement and his violent history; the son’s contribution to the Belfield property while his grandfather owned it was irrelevant and his contribution to the property during the term of his mother’s life interest did not, in all the circumstances, create an obligation on the mother to provide for him in her will. Therefore, no family provision order was made in favour of the son and he was ordered to pay the defendants’ costs.

Legislation Cited:
Succession Act 2006 (NSW)

Cases Cited:
Burke v Burke [2014] NSWSC 1015; (2014) 13 ASTLR 294
Burke v Burke [2015] NSWCA 195; (2015) 13 ASTLR 313
Cachia v Hanes (1991) 23 NSWLR 304
Cachia v Hanes (1994) 179 CLR 403
Evans v Levy [2011] NSWCA 125
Keaton v Gumulak [2020] NSWSC 943
McCarthy v McCarthy [2010] NSWCA 103
Underwood v Gaudron [2014] NSWSC 1055
Underwood v Gaudron [2015] NSWCA 269; (2015) 324 ALR 641
Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191

Texts Cited:
Dal Pont, G. E., Law of Costs (LexisNexis Butterworths, 3rd ed, 2013)

Category: Principal judgment
Parties: Reginald Behrens (Plaintiff)
Monica Behrens (First Defendant)
Ellen Behrens (Second Defendant)
Representation: Plaintiff in person
Second Defendant in person

File Number(s): 2019/113022
Publication restriction: Nil

Judgment

These proceedings concern the estate of the late Patricia Grace Behrens (“Patricia”) who died on 4 May 2018. Patricia…

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 Behrens v Behrens

Details

AGLC: Behrens v Behrens [2020] NSWSC 1566
Case: [2020] NSWSC 1566
Decision Date: 30 October 2020

CaseChat Overview and Summary

In the case of Behrens v Behrens, the dispute arose from a claim by an adult son for family provision from his deceased mother's estate. The son contested the validity of the will, which left everything to his two adult daughters, who were also appointed as trustees and executors. The main asset of the estate was a one-fifth share in his grandfather's estate, which included a property in Belfield, New South Wales. The son argued that he had contributed to the value of the Belfield property during both his grandfather's ownership and his mother's life interest period, although this was contested and could not be quantified.

The legal issues that the court had to decide included whether the son's estrangement from his mother for over 25 years and his history of violence towards family members precluded him from making a valid family provision claim. Another issue was whether any contributions the son made to the Belfield property during his mother's life interest period created an obligation on her to provide for him in her will.

The court found that the mother had no obligation to provide for her son due to their long-standing estrangement and his history of violence. The court further ruled that the son's contributions to the Belfield property during his grandfather's ownership were irrelevant to the claim. Even though the son's contributions during his mother's life interest period could not be quantified, the court determined that they did not create an obligation on the mother to provide for him in her will. Consequently, the son's claim was dismissed, and he was ordered to pay the defendants' costs.

As a result of the court's decision, the son was not entitled to any provision from his mother's estate, and the daughters retained their inheritance as per the will. The son's claim was rejected entirely, and he was additionally liable for the legal costs incurred by the daughters during the proceedings.

Orders