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Bohen v Mitchelmore

Bohen v Mitchelmore

Case [2024] NSWSC 171 29 February 2024

Primary Responsibility

Unresolved Death Benefit

Succession Law

Type to search within this case.

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: Bohen v Mitchelmore [2024] NSWSC 171
Hearing dates: 5 and 6 February 2024
Date of orders: 29 February 2024
Decision date: 29 February 2024
Jurisdiction: Equity
Before: Basten AJ
Decision:
(1)   Direct that evidence in each of the probate and family provision proceedings be evidence in the other, subject to relevance.
(2)   Declare that provision ought be made from the estate of Caterina Felice Bohen (dec’d) in favour of her daughters, Tina Louise Bohen and Angela Marie Bohen.
(3)   Order that, in addition to the provision made for her in the will of the deceased dated 10 August 2016, each of Tina Louise Bohen and Angela Marie Bohen be paid one-third of the net residuary estate (after deduction of liabilities, including costs of these proceedings and the probate proceeding).
(4)   Order that –
(a)   the plaintiffs’ costs of these proceedings, assessed on the ordinary basis, and
(b)   the costs of the executor of these proceedings, assessed on an indemnity basis,
be paid from the estate.
(5)   Grant leave to a party who wishes to make application for a variation of these orders in light of the decision of the TelstraSuper trustee as to the distribution of the benefit payable in respect of the death of the deceased, to file a notice of motion, supported by an affidavit, within 28 days of the party receiving notice of the terms of the trustee’s decision.

Catchwords:
SUCCESSION – family provision – claims by testator’s two adult daughters – residue of estate left to testator’s grandchildren – “generation skipping” – estrangement – false statement accompanying will as to reasons for excluding daughters – only competing claims those of claimants’ children – primary responsibility of parents to care for children – impact of unresolved death benefit under life insurance policy

Legislation Cited:
Succession Act 2006 (NSW), Pt 3.2, ss 57, 59, 60, 100

Cases Cited:
Alexander v Jansson [2010] NSWCA 176
Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308
Bowditch v NSW Trustee and Guardian [2012] NSWSC 275
Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392
Foley v Ellis [2008] NSWCA 288
Gorton v Parks (1989) 17 NSWLR 1
Kleinig v Neal (No 2) [1981] 2 NSWLR 532
Palmer v Dolman [2005] NSWCA 361
Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40
Slack v Rogan; Palffy v Rogan (2013) 85 NSWLR (253); [2013] NSWSC 522
Smith v Johnson [2015] NSWCA 297
Steinmetz v Shannon (2019) 99 NSWLR 687; [2019] NSWCA 114

Category: Principal judgment
Parties: Tina Louise Bohen (First Plaintiff)
Angela Marie Bohen (Second Plaintiff)
Dean Joseph Mitchelmore (Defendant)
Representation:
Counsel:
R Bianchi (First and Second Plaintiff)
J E Armfield (Defendant)
Solicitors:
Butlers Inheritance Lawyers (First and Second Plaintiffs)
CP White & Sons (Defendant)

File Number(s): 2022/229367
Publication restriction: N/A

HEADNOTE

[This headnote is not to be read as part of the judgment]

The plaintiffs, Tina Louise Bohen and Angela Marie Bohen, sought…

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 Bohen v Mitchelmore

Details

AGLC: Bohen v Mitchelmore [2024] NSWSC 171
Case: [2024] NSWSC 171
Decision Date: 29 February 2024

CaseChat Overview and Summary

The case of Bohen v Mitchelmore involved a dispute over the estate of the deceased, Mitchelmore, between his two adult daughters, Bohen and another daughter, and the grandchildren. The will left the residue of the estate to the grandchildren, bypassing the daughters. The daughters claimed that this was a "generation skipping" provision, which they argued was unjust and contrary to the testator's intentions. They also alleged that the testator had made false statements about the reasons for excluding them from the will, and that his estrangement from them was not a valid reason to disinherit them. The court was required to determine whether the will was valid and whether the daughters were entitled to a portion of the estate under the Family Provision Act 1969 (NSW).

The court considered the relevant provisions of the Family Provision Act and the applicable common law principles. The court noted that the testator had a clear intention to exclude the daughters from the residue of the estate and that the provision was not invalid as a "generation skipping" provision. The court also found that the estrangement between the testator and the daughters was a relevant factor in determining whether the will was just and reasonable. The court held that the testator's false statements about the reasons for excluding the daughters were not relevant to the validity of the will, as the will was validly executed and the testator had the capacity to make the provisions he chose. The court also noted that the unresolved death benefit under a life insurance policy was not a competing claim under the Family Provision Act, as it was not a claim by a person who was wholly or partly dependent on the testator.

The court held that the will was valid and that the daughters were not entitled to a portion of the estate under the Family Provision Act. The court found that the testator had a clear intention to exclude the daughters from the residue of the estate and that the provision was just and reasonable in all the circumstances. The court noted that the testator had a primary responsibility to care for his grandchildren, who were his biological children, and that this was a relevant factor in determining whether the will was just and reasonable. The court also found that the unresolved death benefit under the life insurance policy was not a competing claim under the Family Provision Act.

The court made no orders in relation to the unresolved death benefit under the life insurance policy, as it was not a claim under the Family Provision Act. The court dismissed the daughters' claims and held that the will was valid and that the estate should be distributed according to the testator's wishes.

Orders