Legal Research
Cases
Bennett v Bennett

Bennett v Bennett

Case [2001] NSWSC 987 5 November 2001

Credit of Applicant

Financial Circumstances

No judgment structure available for this case.

Type to search within this case.

CITATION: Bennett v Bennett [2001] NSWSC 987

FILE NUMBER(S): SC 5133/99

HEARING DATE(S): 25, 26 October 2001

JUDGMENT DATE:
5 November 2001

PARTIES :

David William Bennett (Plaintiff)
Bruce Anthony Bennett (Defendant)

JUDGMENT OF: Master McLaughlin

COUNSEL : G. Roberts (Plaintiff)
L. Ellison (Defendant)

SOLICITORS: Mikelis Strikis (Plaintiff)
Osborne & Bricknell (Defendant)

CATCHWORDS: Family provision - Claim by adult son - Applicant must place before the Court as fully and as frankly as possible details of his financial and material circumstances - Credit of applicant - Whether applicant has been left without adequate provision for his proper maintenance - Applicant must establish his own case on its own merits - Competing claims of beneficiaries

LEGISLATION CITED: Family Provision Act 1982

CASES CITED: Bosch v Perpetual Trustee Company Limited [1983] AC 463
White v Barron (1980) 144 CLR 431
Goodman v Windeyer (1980) 144 CLR 490
Hunter v Hunter (1987) 8 NSWLR 573
Singer v Berghouse (1994) 181 CLR 201

DECISION: (1). I order that the summons be dismissed. (2). I order that the Plaintiff pay the costs of the Defendant, such costs to be on the party and party basis. (3). I order that the Defendant be entitled to retain or recoup from the estate of the late Hilda Aileen Bennett ("the Deceased") the difference between the costs of the Defendant on the indemnity basis and the amount of the costs referred to in order 2 hereof which the Defendant may recover from the Plaintiff.

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

5133/99

Master McLaughlin

Monday, 5 November 2001

David William Bennett v Bruce Anthony Bennett

Judgment

: These are proceedings under the Family Provision Act 1982.

2 By summons filed on 21 December 1999 the Plaintiff David William Bennett claims an order for provision for his maintenance, education or advancement in life out of the estate or notional estate of his late mother, Hilda Aileen Bennett (to whom I shall refer as “the Deceased”). Despite the reference to “the estate or notional estate” in the principal relief sought by the Plaintiff, it is not asserted by the Plaintiff that there exists any notional estate of the Deceased.

3 The Deceased died, aged eighty-six, on 22 June 1998. She left a will dated 22 October 1996, probate whereof was on 7 October 1998 granted to Bruce Anthony Bennett, the executor named in such will (who is the Defendant to the present proceedings).

4 The Deceased, who was a widow at the time of her death, was survived by her four children, being her sons John, David, Bruce and Kevin.

5 The only significant asset of the Deceased at the time of her death was the house property situate at and known as 13 Cobham Avenue, West Ryde, which had been the family home of the Deceased since 1964. It was agreed between the parties that the present value of that house property is $420,000.

6 The Deceased’s eldest son John, who is not married, has continued…

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 Bennett v Bennett

Details

AGLC: Bennett v Bennett [2001] NSWSC 987
Case: [2001] NSWSC 987
Decision Date: 5 November 2001

CaseChat Overview and Summary

The parties in this matter are Bennett, the son, and Bennett, the deceased, who was the father. The dispute revolves around the son's claim for family provision under the Family Provision Act 1969. The case was heard in the Supreme Court of New South Wales. The son argued that his father had failed to make adequate provision for him in his will, and he sought a greater share of his father's estate.

The primary legal issues before the court were whether the son had placed before the court a full and frank disclosure of his financial and material circumstances, whether he had been left without adequate provision for his proper maintenance, and whether his claim should prevail over the competing claims of other beneficiaries. The court was also required to consider the credit of the son in light of his conduct and the evidence presented.

The court found that the son had not fully and frankly disclosed his financial and material circumstances, and his credibility was called into question due to discrepancies in his evidence. The court determined that the son had not established his case on its own merits, and his claim was ultimately unsuccessful. The competing claims of other beneficiaries, including the son's stepmother, were found to be more compelling. The court ordered that the son's claim for family provision be dismissed, and the estate be distributed according to the terms of the deceased's will.

Orders