Bingham v Forrest - [1999] NSWSC 540

CITATION: Bingham v Forrest [1999] NSWSC 540

CURRENT JURISDICTION: Equity

FILE NUMBER(S): 2916/98

HEARING DATE(S): 26/05/99

JUDGMENT DATE:
26 May 1999

PARTIES :

Lisa Carolyn Bingham v Jan Erica Forrest

JUDGMENT OF: Master Macready at 1

COUNSEL : Mr B. Sharpe for the plaintiff
Mr G. Rundle for the defendant

SOLICITORS: Gary Cleary & Associates, Gosford for the plaintiff
Bruce & Stewart, Sydney for the defendant

CATCHWORDS: Family Provision Act. Application by daughter of deceased's first marriage. Estate substantially passes to widow who had a long and happy marriage to the deceased and who helped build up deceased's estate. Daughter's claim fails.

DECISION: Paras 41 and 44

17
THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

MASTER MACREADY
WEDNESDAY 26 MAY 1999
2916/98 - LISA CAROLYN BINGHAM v JAN ERICA FORREST
JUDGMENT
1 MASTER: This is an application under the Family Provision Act in respect of the estate of the late Graham Douglas Forest who died on 14 June 1997 aged sixty-two years. The deceased was survived by his widow, the defendant, his daughter by his first marriage who is the plaintiff, and his two former wives. Notice has been given to his former wives who have made no claim in the estate.
2 By his will made 19 May 1980 the deceased left the plaintiff, his daughter, a legacy of $5,000 and he gave the residue to the defendant and appointed her executrix of his estate. The deceased had a property at 7 Glover Street, Mosman which is estimated by the defendant to now have a value of between $600,000 and $650,000. She has apparently had some appraisals made by a valuer to arrive at this value. There were two vans worth in total $15,000, which have been sold. There were some tools worth about $700 and there was also an interest in the estate of the deceased's father, James Murray Forrest. That interest was given to the deceased under the will of his father which was made 2 February 1974.
3 In that will he gave his property to his four children and, following upon that, there was a deed of family arrangement which was entered into some time probably in 1991 under which the four children gave the deceased's widow Charlotte Forrest, a life interest in that property which comprised his estate, or a subsequent property which apparently has been purchased at Werribee in the State of Victoria. The property at Werribee is said to have a value of $110,000, which would put the interest of the deceased in that property at $27,500, subject of course to the life estate.
4 There was also jointly owned property held by the defendant and the deceased, bank accounts of some $9,731.39, steers $5,084, and there was also a Tumut farming property of some 202 acres. There have been a number of estimates of value but the most recent one, according to the one which I shall adopt, is that the property is worth between $800 and $1,000 per…

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 Bingham v Forrest

Details

AGLC: Bingham v Forrest [1999] NSWSC 540
Case: [1999] NSWSC 540
Decision Date: 26 May 1999

CaseChat Overview and Summary

Bingham, a daughter from the deceased's first marriage, applied to the court under the Family Provision Act, seeking a portion of her father's estate. The estate was largely left to the deceased's widow, with whom he shared a long and happy marriage. The widow had also been instrumental in the development of the deceased's estate. The court was tasked with determining whether the deceased had made adequate financial provision for Bingham, given the circumstances of her marriage and the widow's contributions. The central legal issue was whether the provisions made under the will were fair and reasonable, considering the statutory obligations outlined in the Family Provision Act.

The court examined the statutory criteria to assess if adequate financial provision had been made for Bingham. It considered the deceased's obligations to his family, his moral duty towards Bingham, and the contributions of the widow to the estate. The court found that the deceased had indeed made adequate provision for Bingham, given the circumstances. The long and happy marriage with the widow, coupled with her significant contributions to the estate, were key factors in this determination. Bingham's claim was dismissed as the court held that the deceased's actions were consistent with the requirements of the Act.

In conclusion, the court ruled that the deceased had made adequate provision for Bingham under the Family Provision Act. The widow's substantial contributions and the nature of her marriage to the deceased played a crucial role in this decision. Bingham's application was unsuccessful, and the estate was to be distributed as per the deceased's will.

Orders