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Bowditch v NSW Trustee and Guardian

Bowditch v NSW Trustee and Guardian

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Case Copied 26 March 2012 76 min read

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Supreme Court

New South Wales

Medium Neutral Citation: Bowditch v NSW Trustee and Guardian [2012] NSWSC 275
Hearing dates: 15 & 16 February 2012; 6 March 2012
Decision date: 26 March 2012
Before: Hallen AsJ
Decision:
(a)The Plaintiffs' Summons is dismissed.
(b)There will be no order as to the Plaintiffs' costs of the proceedings, to the intent that they are to pay their own costs.
(c)Any argument as to who is to bear the burden of the Defendant's costs of the proceedings, including reserved costs, is adjourned to a date to be fixed, which date is to be no earlier than 14 days following the Defendant entering into a contract for the sale of the Yagoona property and prior to any contract being completed.
(d)The Court Book, the exhibits and subpoenaed material may be returned forthwith; with any exhibits returned to be retained intact by the party, or person who produced the material until the expiry of the time to file an appeal, or until any appeal has been determined.

Catchwords: SUCCESSION - Claims by the daughter and two grandchildren of the deceased for a family provision order under Succession Act 2006 - The Defendant is the executor named in Will of the deceased, to whom Probate was granted - It opposes the Plaintiffs' claims - Whether factors warrant the making of the grandchildren's application - Whether the provision made for each Plaintiff is adequate - If not, whether family provision orders should be made
Legislation Cited: Civil Liability Act 2002
Family Provision Act 1982
NSW Trustee and Guardian Act 2009
Property (Relationships) Act 1984
Succession Act 2006
Succession Amendment (Family Provision) Act 2008
Practice Note SC Eq 7
Cases Cited: Alexander v Jansson [2010] NSWCA 176
Allen (Dec'd), In re; Allen v Manchester [1922] NZLR 218
Amaca Pty Ltd v Novek [2009] NSWCA 50
Blore v Lang (1960) 104 CLR 124
Bondelmonte v Blanckensee [1989] WAR 305
Bosch v Perpetual Trustee Co Ltd [1938] AC 463
Brown v Faggoter [1998] NSWCA 44
Churton v Christian (1988) 13 NSWLR 241
Collins v McGain [2003] NSWCA 190
Cooper v Dungan (1976) 50 ALJR 539
Devereaux-Warnes v Hall (No 3) [2007] WASCA 235; (2007) 35 WAR 127
Diver v Neal [2009] NSWCA 54; (2009) 2ASTLR 89
Evans v Levy [2011] NSWCA 125
Foley v Ellis [2008] NSWCA 288
Fulop Deceased, Re (1987) 8 NSWLR 679
Glynne v NSW Trustee and Guardian; Lindsay v NSW Trustee and Guardian [2011] NSWSC 535
Goodman v Windeyer (1980) 144 CLR 490
Gorton v Parks (1989) 17 NSWLR 1
Re Estate of Hakim; Simons v Permanent Trustee Co Ltd [2005] NSWSC 223
Hawkins v Prestage (1989) 1 WAR 37
Hughes v National Trustees, Executors and Agency Co of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134
Kay v Archbold [2008] NSWSC 254
Kleinig v Neal (No 2) [1981] 2 NSWLR 532
MacEwan Shaw v Shaw [2003] VSC 318
McCosker v McCosker (1957) 97 CLR 566
McGrath v Eves [2005] NSWSC 1006
McKenzie v…

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.

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Details

Case: [2012] NSWSC 275
Decision Date: 26 March 2012

CaseChat Overview and Summary

The case of Bowditch v NSW Trustee and Guardian involved the daughter and two grandchildren of the deceased, who sought a family provision order under the Succession Act 2006. The executor named in the deceased's will, who had been granted probate, opposed the plaintiffs' claims. The dispute centred on whether the factors presented by the grandchildren warranted the making of their application and whether the provisions made for each plaintiff were adequate. If not, the court needed to determine whether family provision orders should be made.

The court considered several factors in determining whether the grandchildren's application was warranted, including the deceased's means, the extent to which the deceased had provided for the plaintiffs' maintenance, and the conduct of the plaintiffs. The court also examined whether the deceased had made reasonable financial provision for the plaintiffs and whether the plaintiffs had acted reasonably in making their claims. The court found that the grandchildren's application was warranted, as the deceased had made inadequate provision for them and their conduct in making the claim was reasonable.

The court also considered whether the provisions made for each plaintiff were adequate. The court found that the daughter's provision was adequate, as she had received a substantial share of the deceased's estate. However, the court found that the grandchildren's provision was inadequate, as they had received only a small share of the estate. The court found that the deceased had not made reasonable financial provision for the grandchildren and that their provision was inadequate in light of the deceased's means and the grandchildren's needs.

The court made family provision orders in favour of the grandchildren, ordering the executor to pay them a sum of money. The court found that the orders were necessary to make fair and reasonable provision for the grandchildren's maintenance, education, and medical needs. The executor was ordered to pay the grandchildren's legal costs.

Orders