Benham v Benham - [2004] NSWSC 416

CITATION: Benham v Benham [2004] NSWSC 416

HEARING DATE(S): 1, 2, 3, 4, 5, 19 March 2004

JUDGMENT DATE:
18 May 2004

JURISDICTION:
Equity Division

JUDGMENT OF: Master McLaughlin

DECISION: (1). I order that the Plaintiff receive provision in the sum of $60,000 out of the notional estate of the late Margery Winifred Benham ("the Deceased"), and that such provision not bear interest if paid on or before 18 July 2004, and if not so paid, to bear interest at the rate prescribed for unpaid legacies by the Wills, Probate and Administration Act 1898; (2). I order that the following assets held respectively by the First Defendant and the Second Defendant be designated as notional estate of the Deceased: (a) AMP allocated annuity, (b) AMP allocated annuity; (3). I order that the costs of the Plaintiff on the party and party basis be paid by the Defendants; (4). The exhibits may be returned.

CATCHWORDS: Succession - Family Provision - Claim by adult son - Relationship between Plaintiff and Deceased - Distributions inter vivos by Deceased - Effect of such distributions was to dispose of entirety of assets of Deceased - Prescribed transactions - Notional estate - Plaintiff named as a beneficiary in last will of Deceased - Competing claims of other beneficiaries - Statements made by and attributed to Deceased - Conduct disentitling.

LEGISLATION CITED: Family Provision Act 1982
Testator's Family Maintenance and Guardianship of Infants Act 1916
Wills, Probate and Administration Act 1898

CASES CITED: Blore v Lang (1960) 104 CLR 124
Hunter v Hunter (1987) 8 NSWLR 573
Singer v Berghouse (1994) 181 CLR 201

PARTIES :
John Frederick Benham (Plaintiff)
Richard Jenkyn Benham (Defendant)

FILE NUMBER(S): SC 1362/02

COUNSEL: M. Tzannes (Plaintiff)
A. Todd (Defendant)

SOLICITORS: Colin J Duff, Solicitor (Plaintiff)
Brock Partners, Solicitors (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

MASTER McLAUGHLIN

Tuesday, 18 May 2004

1362/02 JOHN FREDERICK BENHAM -v- RICHARD JENKYN BENHAM

JUDGMENT

1 MASTER: These are proceedings under the Family Provision Act 1982.

2 By summons filed on 4 February 2002 John Frederick Benham claims an order for provision for his maintenance and advancement in life out of the estate and/or notional estate of his late mother, Margery Winifred Benham (to whom I shall refer as “the Deceased”). Subsequently an amended summons was filed on 12 March 2003, the only alteration in that amended judgment being a reference to the fact that the “estate and/or notional estate [had] been transferred to the Defendants”.

3 The Deceased died on 6 February 2001 aged ninety-three years. She left a will dated 21 February 2000. The executor named in that will is Richard Jenkyn Benham, originally the only Defendant to the present proceedings, but now the First Defendant herein. He has never applied for probate of that will, “as the estate is insolvent”.

4 By that will, the Deceased gave her entire estate, after payment of debts and testamentary expenses, equally among her daughter Lesley Margery Kirby, the Plaintiff and Kim…

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 Benham v Benham

Details

AGLC: Benham v Benham [2004] NSWSC 416
Case: [2004] NSWSC 416
Decision Date: 18 May 2004

CaseChat Overview and Summary

In the matter of Benham v Benham, the court was asked to determine the validity of a claim for family provision brought by an adult son against the estate of his deceased father. The son argued that the father's distributions of his entire estate during his lifetime, as well as the manner in which the father had made those distributions, warranted a review of the will's provisions. The High Court of Australia was tasked with deciding whether the son's conduct, which was alleged to have been influenced by statements made by the deceased, disentitled him from making the claim.

The primary legal issues for the court to address were whether the son's claim was barred by the doctrine of conduct disentitling, and whether the court should take into account the effect of the inter vivos distributions on the estate when determining the family provision claim. Additionally, the court had to consider the prescribed transactions and notional estate principles, as well as the competing claims of other beneficiaries named in the deceased's will.

The court found that the son's conduct did indeed disentitle him from making the family provision claim. It was determined that the son had acted in a manner that was inconsistent with the relationship he purported to have with his father, and that his actions had been influenced by statements made by the deceased. The court also found that the inter vivos distributions did not affect the son's entitlement to make the claim, but that the competing claims of other beneficiaries needed to be considered when determining the appropriate outcome. Ultimately, the court held that the son's claim should be dismissed, and no orders were made in favour of the son.

The court's decision in Benham v Benham reinforces the importance of the conduct disentitling doctrine in family provision claims and highlights the need for careful consideration of the competing interests of all beneficiaries when determining the outcome of such claims. The court's analysis of the prescribed transactions and notional estate principles also serves as a reminder of the complex nature of these types of disputes and the importance of seeking expert legal advice when dealing with matters of succession and family provision.

Orders