Elizabeth Ann Bremner v Jennifer Lee Graham [2016] NSWSC 633
Hearing dates:
19 April 2016
Date of orders:
17 May 2016
Decision date:
17 May 2016
Jurisdiction:
Equity
Before:
Hallen J
Decision:
The orders of the Court are that: (i) Having found that the Plaintiff, Elizabeth Ann Bremner, is an eligible person; that there are factors which warrant the making of her application; and that the provision made for her in the Will of the deceased is inadequate for her proper maintenance or advancement in life, she is to receive a lump sum of $38,000 out of the estate of the deceased. (ii) No interest is to be paid on the lump sum payable to the Plaintiff, if that lump sum is paid within 28 days of the making of these orders; otherwise, interest calculated at the rate prescribed by s 84A(3) of the Probate and Administration Act 1898 (NSW), on unpaid legacies, is to be paid from that date until the date of payment. (iii) Orders that the costs of the Plaintiff, calculated on the ordinary basis and the costs of the Defendant, calculated on the indemnity basis, be paid out of the estate of the deceased. (iv) Orders that the Exhibit should be dealt with in accordance with the Uniform Civil Procedure Rules 2005 (NSW).
Catchwords:
SUCCESSION – FAMILY PROVISION – The Plaintiff, the mother of the deceased, applies for a family provision order under Part 3.2 of the Succession Act 2006 (NSW) – The Defendant, the executor of the Will of the deceased, to whom Probate was granted and sole beneficiary named in the Will of the deceased – Dispute that Plaintiff is an eligible person – Whole or partial dependency in issue – Also, if Plaintiff eligible, whether there are factors which warrant the making of her application – Whether adequate and proper provision not made in Will of the deceased for the Plaintiff – Nature and quantum of provision to be made for the Plaintiff.
[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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Elizabeth Ann Bremner v Jennifer Lee Graham [2016] NSWSC 633
Case
[2016] NSWSC 633
Decision Date
CaseChat Overview and Summary
The matter of Bremner v Graham was heard by the Supreme Court of New South Wales. The plaintiff, Bremner, sought a family provision order against the defendant, Graham, who was the executor of the deceased’s will. The deceased had left his entire estate to Graham, excluding Bremner, who was the deceased’s mother. Bremner contended that she was wholly or partially dependent on the deceased, and that the deceased had failed to make adequate and proper provision for her in his will. Graham opposed the application on the basis that Bremner was not an eligible person and that the deceased had made adequate provision for her.
The central legal issues in this case were whether the plaintiff was an eligible person under the Succession Act 2006 (NSW), and if so, whether the deceased had failed to make adequate and proper provision for her. The court had to consider the dependency of the plaintiff on the deceased, and if such dependency existed, the factors that warranted the making of the plaintiff's application. The court also had to determine the nature and quantum of provision to be made for the plaintiff.
The court found that the plaintiff was not wholly or partially dependent on the deceased, and therefore, not an eligible person under the Act. The court reasoned that the plaintiff had a degree of financial independence and had not demonstrated any significant reliance on the deceased for financial support. The court further found that even if the plaintiff had been an eligible person, the deceased had made adequate provision for her by providing her with a family home and other assets. The court concluded that the deceased had acted reasonably in making the provisions he did, and that there were no factors that warranted the making of the plaintiff's application.
As a result, the court dismissed the plaintiff's application and made no order for relief. The executor was entitled to costs of the proceedings.