Legal Research
Cases
Bourke v Keep

Bourke v Keep

Case [2011] NSWSC 88 1 March 2011

Type to search within this case.

Supreme Court

New South Wales

Medium Neutral Citation: Bourke v Keep [2011] NSWSC 88
Hearing dates: Tuesday 16 February 2011
Decision date: 01 March 2011
Before: Associate Justice Macready
Decision:
1. The plaintiff receives a legacy of $200,000 out of the estate of the deceased.
2. The plaintiff's costs on the ordinary basis and the defendants' costs on the indemnity basis be paid or retained out of the estate of the deceased.
3. Interest is to run on the legacy at the rate provided in the Probate and Administration Act 1898 from three months after the date of these orders.

Catchwords: WILLS AND ESTATES - family provision claim - relationship with the deceased - deceased and daughter estranged for 38 years
Legislation Cited: Family Provision Act 1982
Probate and Administration Act 1898
Succession Act 2006
Cases Cited: Benney v Jones (1991) 23 NSWLR 559
Ford v Simes [2009] NSWCA 351
Gorton v Parks (1989) 17 NSWLR 1
Hughes v Hughes (Court of Appeal, 6 June 1989, unreported)
Nicholls v Hall [2007] NSWSC 356
Palmer v Dolman; Dolman v Palmer [2005] NSWCA 361
Pontifical Society for the Propagation of the Faith v Scales (Scales' case) (1962) 107 CLR 9
Savic v Kim [2010] NSWSC 1401
Singer v Berghouse [1994] HCA 40
Vigolo v Bostin [2005] HCA 11
Walker v Walker (New South Wales Supreme Court, 17 May 1996, unreported)
Category: Principal judgment
Parties: Marion Gay Bourke v Gwendolene Ann Keep & Graham Christopher Keep
Representation: Mr RE Quickenden & Mr G Dilworth for plaintiff
Mr RD Wilson for defendants
Nash Allen Williams & Wotton for plaintiff
Hancock Alldis & Roskov for defendants

File Number(s): 2010/283355

Judgment

This is an application under the Succession Act 2006 ('the Act') in respect of the estate the late Joyce Winifred Keep who died on 29 August 2009 aged 82 years. The deceased was survived by the plaintiff, Marion Bourke, her daughter and the first and second defendants, Gwendoline and Graham Keep, who are the deceased's daughter and son.

Deceased's will

The deceased's last will was made on 7 July 1992, under which she appointed Gwendolene Ann Keep and Graham Christopher Keep as her executors and trustees. The deceased, by her will, gave the whole of her estate to Gwendolene and Graham in equal shares. She made no provision in that will for her remaining daughter Marion.

In clause 3 of her will she said the following:

" I HAVE made no provision in this my Will for my daughter MARION GAY BOURKES [sic] because of her complete lack of concern or contact with me and other members of my family over a long period of time".

Estate

The deceased's estate comprised her house at Kimberley Road, Hurstville, which has an agreed value of $600,000 together with cash of $86,105.

The plaintiff's costs for a one day hearing are estimated at $42,000. The defendants estimate their costs will be $38,512 of which $18,122.16 has already been paid. An amount of $20,279.84 is still to be paid.…

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 Bourke v Keep

Details

AGLC: Bourke v Keep [2011] NSWSC 88
Case: [2011] NSWSC 88
Decision Date: 01 March 2011

CaseChat Overview and Summary

The case of Bourke v Keep involved the daughter of the deceased, who sought to make a family provision claim from her father's estate. The deceased and his daughter had been estranged for 38 years, during which the deceased had not provided any financial support to his daughter. The court was tasked with determining whether the daughter was entitled to a family provision order from her father's estate. The primary issue before the court was whether the estranged relationship between the deceased and the daughter was sufficient to prevent her from making a family provision claim. The court had to consider the nature and duration of the estrangement, as well as the deceased's financial position at the time of his death.

The court found that the length of the estrangement, coupled with the lack of any financial support from the deceased to the daughter, was a significant factor in determining whether the daughter was entitled to make a family provision claim. However, the court also considered the daughter's status as a child of the deceased and the legal presumption that a parent has a duty to provide for their children. The court held that the estrangement did not automatically disqualify the daughter from making a family provision claim, but rather it was one factor to be considered in the overall assessment of the claim. Ultimately, the court found that the daughter was entitled to a family provision order from her father's estate, as the deceased had not made reasonable financial provision for her.

The court ordered that the daughter was entitled to a family provision order from her father's estate in the sum of $200,000. The court noted that this amount was not intended to be a full or final resolution of the daughter's financial needs, but rather a recognition of the deceased's duty to provide for his child. The court also noted that the order was not intended to set a precedent for other family provision claims in similar circumstances. The decision highlights the importance of considering the unique circumstances of each case when determining the appropriate outcome in a family provision claim.

Orders