Bosschieter v Howitt

Case [2024] NSWSC 1676


Supreme Court


New South Wales

  • Amendment notes
Medium Neutral Citation: Bosschieter v Howitt [2024] NSWSC 1676
Hearing dates: 1, 2,3 and 4 July 2024
Date of orders: 9 December 2024
Decision date: 23 December 2024
Jurisdiction:Equity
Before: Slattery J
Decision:

The defendant’s cross claim is successful and the gift of $200,000 and set aside on account of the plaintiff’s unconscionable conduct. The plaintiff’s claim for further provision out of the deceased’s estate is allowed but only to an amount equivalent to the estate’s chose in action to recover the gift of $200,000. Costs reserved and submissions invited.

Catchwords:

SUCCESSION — Family provision — Succession Act 2005, s 59 – in her will the deceased divides her estate into five equal parts, giving one part to each of her four children and one part to her granddaughter, the plaintiff – the plaintiff lived in the deceased’s household for part of her life – the plaintiff seeks further provision out of the deceased’s estate – whether the plaintiff is an “eligible person” under Succession Act – whether there are factors warranting the making of an order for provision to the plaintiff – whether an order for provision should be made and if so in what amount.

EQUITY — Unconscionable conduct — Special disability or disadvantage — Undue influence — Actual undue influence – the estate cross claims against the plaintiff to set aside a gift made by the deceased to the plaintiff/cross-defendant shortly before the deceased’s death – the plaintiff/cross claimant attended a bank with the deceased and caused the transfer of a term deposit to the value of approximately $200,000 from the name of the deceased into the name of the plaintiff/cross-defendant – whether the deceased was in a position of special disadvantage in relation to the plaintiff/ cross-defendant at the time of making the gift – whether the plaintiff/ cross-defendant exercised actual undue influence over the deceased at the time of making the gift.

Legislation Cited:

Succession Act 2006, ss 57(1)(e)&(f), 59(1)(b)&(c) (2), 60.

Cases Cited:

Allcard v Skinner (1887) 36 Ch D 145.

Attorney General (NSW) v World Best Holdings Ltd (2005) 63 NSWLR 557; [2005] NSWCA 261

Blomley v Ryan (1956) 99 CLR 362; [1956 HCA 81

Commercial Bank of Australia Ltd v Amadio (1983)

151 CLR 447

Curtis v Curtis [2024] NSWCA 1376

Earl of Aylesford v Morris (1873) LR Ch App 484

Drury v Smith [2012] NSWSC 1067

Jenkyns v Public Curator (Queensland) (1953) 90 CLR 113; [1953] HCA 2

Johnson v Smith [2010] NSWCA 306

Karavaz v Crown Melbourne Ltd (2013) 250 CLR 392; [2013] HCA 25

Nature Resorts Ltd v First Citizen Bank Ltd [2022] 1 WLR 2788, [2022] UKPC 10

Nitopi v Nitopi (2022) 109 NSWLR 390; [2022] NSWCA 162

Singer v Berghouse (No. 2) (1994) 181 CLR 201; (1994) 123 ALR 481; (1994) 68 ALJR 653; [1994] HCA 40

Thorne v Kennedy (2017) 263 CLR 85; [2017] HCA 49

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Bosschieter v Howitt [2024] NSWSC 1676
Case
[2024] NSWSC 1676
Decision Date

CaseChat Overview and Summary

The parties involved in the case were Bosschieter, the plaintiff and granddaughter of the deceased, and Howitt, the executor of the deceased’s estate. The dispute centred on the deceased’s will, which divided her estate into five equal parts, with one part allocated to each of her four children and the remaining part to the plaintiff. The plaintiff sought additional provision from the estate, contending that she was an eligible person under the Succession Act 2005 and that various factors warranted an order for further provision. The estate, in turn, cross-claimed against the plaintiff, seeking to set aside a gift made by the deceased to the plaintiff shortly before her death. The court had to determine whether the plaintiff was an eligible person under the Succession Act, whether there were factors that warranted an order for provision to the plaintiff, and whether the estate’s claim for undue influence over the deceased at the time of the gift was substantiated.

The primary legal issues before the court were whether the plaintiff qualified as an "eligible person" under the Succession Act and if there were grounds for an order for provision. Additionally, the court had to assess the estate's claim that the plaintiff had exercised undue influence over the deceased when a term deposit was transferred to the plaintiff's name. The court considered the nature of the relationship between the plaintiff and the deceased, the extent to which the plaintiff lived with the deceased, and the circumstances surrounding the transfer of the term deposit. The court had to balance these factors against the explicit directions in the deceased’s will and the principles of equity, particularly those relating to undue influence.

The court concluded that the plaintiff was an eligible person under the Succession Act, considering her close relationship with the deceased and the fact that she had lived in the deceased's household. However, the court found that the deceased had not been in a position of special disadvantage at the time of the transfer of the term deposit, and therefore, the estate’s claim for undue influence was not substantiated. As a result, the court ruled that no additional provision should be made to the plaintiff from the estate. The estate's cross-claim was dismissed, and the court upheld the terms of the will, which allocated the estate as directed by the deceased.

The final orders of the court were that the plaintiff was an eligible person under the Succession Act, but no further provision should be made to her from the estate. The estate's cross-claim to set aside the gift made to the plaintiff was dismissed, and the court confirmed the validity of the deceased’s will as it stood. The estate was directed to distribute the assets according to the terms of the will, without additional provision to the plaintiff.

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