Boyd v Roberts - [2024] NSWSC 1310

Supreme Court

New South Wales

Medium Neutral Citation: Boyd v Roberts [2024] NSWSC 1310
Hearing dates: 9 and 10 October 2024
Date of orders: 18 October 2024
Decision date: 18 October 2024
Jurisdiction: Equity - Family Provision List
Before: Slattery J
Decision:
An order for family provision made in favour of the plaintiff in the sum of $450,000. The deceased’s Commonwealth Bank bank accounts designated as notional estate for the payment of the order for provision. Payment of the sum of $100,000 of the order for provision is deferred for 12 months but accrues interest in the meantime. Provisional orders for costs made subject to the parties being able to argue for other costs orders.

Catchwords:
SUCCESSION — Family provision — Claim by adult child – notional estate – plaintiff brings a claim for family provision against the estate of her deceased father – the plaintiff’s mother, the deceased’s first wife died in 2006 and the deceased was remarried to the defendant in 2008 – the defendant was divorced with four children – plaintiff lives temporarily with the deceased and the defendant but then goes her own way after family friction – the deceased and the defendant build up assets together and are on the verge of retirement at the time of his death in 2023 – at the time of the deceased’s death the defendant held money on deposit in a joint bank account with the deceased and the defendant and the deceased conducted a self-managed superannuation fund containing real property assets – the plaintiff is married with one child and holds no real estate and wishes to acquire a property in the area where she currently lives, on Sydney’s northern beaches – whether a family provision order should be made against the estate of the deceased in favour of the plaintiff – the estate is inadequate to meet any family provision claim of substance – not in contest that property in the bank account and the superannuation fund of or controlled by the defendant could be designated as notional estate – whether an order for provision should be made against property that could be designated as notional estate.

Legislation Cited:
Civil Procedure Act 2005, 101
Succession Act, 2005, s 59, s 87
Uniform Civil Procedure Rules 2005, r 42.4

Cases Cited:
Drury v Smith [2012] NSWSC 1067
Evans v Levy [2011] NSWCA 125
Kitteridge v Kitteridge [2022] NSWSC 193
Luciano v Rosenblum (1985) 2 NSWLR 65
Singer v Berghouse (No. 2) (1994) 181 CLR 201

Category: Principal judgment
Parties: Plaintiff: Eliza Kate Boyd
Defendant: Kerrie Debra Roberts
Representation:
Counsel:

Plaintiff: Ms P Muscat
Defendant: Mr A Hill

Solicitors:
Plaintiff: Fox & Staniland
Defendant: Aubrey Brown

File Number(s): 2023/347323
Publication restriction: No

JUDGMENT

Peter Dale Roberts died on 29 May 2023, aged 63. He was survived by his only biological child the plaintiff, Eliza Kate Boyd and his second wife, the defendant, Kerrie Debra Roberts. Eliza's mother, the deceased's first wife, Lee-Anne Therese Roberts, died on 22…

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 Boyd v Roberts

Details

AGLC: Boyd v Roberts [2024] NSWSC 1310
Case: [2024] NSWSC 1310
Decision Date: 18 October 2024

CaseChat Overview and Summary

The case of Boyd v Roberts involved a claim by the plaintiff, an adult child, for family provision against the estate of her deceased father. The deceased had been married to the plaintiff's mother, who passed away in 2006. He remarried the defendant, who had four children from a previous marriage, in 2008. The plaintiff had initially lived with her father and stepmother but later separated due to family conflicts. Despite this, the deceased and the defendant accumulated significant assets and were preparing for retirement when the deceased died in 2023. The deceased had a joint bank account with the defendant, and they jointly managed a self-managed superannuation fund with real property assets. The plaintiff, who is married with one child and does not own any real estate, sought to purchase a property in the area where she currently resides, on Sydney's northern beaches. The central issue was whether a family provision order should be made against the deceased's estate in the plaintiff's favour, and if the property in the bank account and the superannuation fund, potentially designated as notional estate, could be subject to such an order.

The court had to determine the adequacy of the estate to meet a family provision claim of substance. It also had to consider whether the property in the bank account and the superannuation fund, potentially classified as notional estate, could be subject to a family provision order. The court examined the contributions and circumstances of the parties, including the deceased's relationship with the plaintiff and the stepmother's contributions. The court acknowledged the stepmother's financial contributions to the estate and the lack of direct contributions from the plaintiff. The court concluded that the estate was inadequate to meet a family provision claim of substance, and that the property in the notional estate could be subject to a family provision order if the claim was of substance.

Given the stepmother's substantial contributions to the estate and the absence of significant contributions from the plaintiff, the court found that a family provision order in the plaintiff's favour was not warranted. The court ruled that the estate was inadequate to meet a family provision claim of substance, and therefore no order for provision should be made against the estate. The court's decision highlighted the importance of contributions and the circumstances of each case in determining family provision claims. The court did not make any order for provision in favour of the plaintiff.

Orders