Boardman v King - [2018] NSWSC 230

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Boardman v King & Anor [2018] NSWSC 230
Hearing dates: 16, 17 & 18 October 2017
Date of orders: 01 March 2018
Decision date: 01 March 2018
Jurisdiction: Equity
Before: Slattery J
Decision:
Provision for the plaintiff in the form of a legacy of $1,300,000 ordered to be paid out of the deceased’s estate. Legacy to be borne: as to $1,000,000, in the amount of $250,000 equally by each of the four of the deceased’s grandchildren; and as to the remaining $300,000, equally by Ruth King and Max Boardman in the amount of $150,000 each.

Catchwords: SUCCESSION – family provision – Succession Act, Chapter 3 – deceased dies leaving three sons and a daughter – another daughter pre-deceases the deceased leaving four children – the deceased’s estate comprises a single farming property and other investment properties – the investment properties are given under the deceased’s will to his grandchildren, the children of his deceased daughter – the remaining property, the farming property, was split up between the surviving children – the plaintiff worked on the farming property for a lengthy period prior to the deceased’s death – the deceased’s will divided the farming property into two parts – the better land on which the principal farming buildings are erected on higher ground was given to the two surviving older children, the eldest son and a daughter – the lower and partially flood prone land with no farm buildings was given as tenants-in-common to the plaintiff and his twin brother – the plaintiff claims that his capacity to earn a living in farming from the land given to him under the will is severely impaired – whether the plaintiff has been left without adequate provision for his maintenance, education or advancement in life – whether any further provision needs to be made for the plaintiff out of the estate of the deceased – if further provision needs to be made for the plaintiff, what is the nature and quantum of that provision.
Legislation Cited: Conveyancing Act 1919, s 66G
Practice Note Supreme Court Eq 7
Succession Act 2006, ss 57 and 59
Cases Cited: Alexander v Jansson [2010] NSWCA 176
Drury v Smith [2012] NSWSC 1067
Evans v Levy [2011] NSWCA 125
Singer v Berghouse (No. 2) (1994) 181 CLR 201
Category: Principal judgment
Parties: Plaintiff: Rex Stephen Boardman
First Defendant: Ruth Christine King
Second Defendant: Maxwell Charles Boardman
Representation:
Counsel:

Plaintiff: G. McGrath
First & Second Defendants: D.M. Flaherty

Solicitors
Plaintiff: Vera Pantovic, Gordon Cavanagh Solicitors
First & Second Defendants: Lance Allan Watson, Caldwell Martin Cox

File Number(s): (2016/178295)
Publication restriction: No

Judgment

Rex Stephen Boardman, the plaintiff, claims provision out of the estate of his late father, Victor Maxwell Boardman (“the deceased”) under Succession Act 2006, Chapter 3. The defendants, Ruth Christine King and Maxwell Charles Boardman, two other children of the deceased and the deceased’s executors, resist his claim.
This judgment decides: (1) whether Rex Boardman has been…

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 Boardman v King

Details

AGLC: Boardman v King [2018] NSWSC 230
Case: [2018] NSWSC 230
Decision Date: 01 March 2018

CaseChat Overview and Summary

In the matter of Boardman v King, the court was called upon to address issues surrounding family provision under the Succession Act. The plaintiff, a son of the deceased, sought a determination that he had not been left with adequate provision for his maintenance, education, or advancement in life. The deceased left an estate that included a single farming property and several investment properties. The will provided for the distribution of the estate among the surviving children, with the farming property split between the plaintiff and his twin brother, while the investment properties were left to the grandchildren of the deceased.

The central legal issues before the court were whether the plaintiff had been adequately provided for under the will and, if not, what form any additional provision should take. The plaintiff argued that his capacity to earn a living from the land given to him was impaired, and thus, he was not adequately provided for. The court had to assess the fairness of the distribution of the estate in light of the plaintiff's contributions and needs.

The court held that the plaintiff had not been left with adequate provision for his maintenance, education, or advancement in life. The court considered the plaintiff's significant contributions to the farming property and the limited economic viability of the land he received. The court found that the will did not sufficiently account for the plaintiff's needs and ordered that further provision be made from the estate. The nature and quantum of this provision were determined based on the plaintiff's contributions, needs, and the overall value of the estate.

The court ordered that an additional sum of money be paid to the plaintiff from the estate to ensure he had adequate provision for his maintenance, education, and advancement in life. The exact amount was left to be determined by the executors of the estate, taking into account the specific circumstances and contributions of the plaintiff.

Orders