Brewer v Ney

Case [2023] NSWSC 526


Supreme Court


New South Wales

Medium Neutral Citation: Brewer v Ney [2023] NSWSC 526
Hearing dates: 12-13 April 2023
Date of orders: 18 May 2023
Decision date: 18 May 2023
Jurisdiction:Equity
Before: Hallen J
Decision:

The Court:

(1) Having regard to all the facts known at the date of hearing the application, and not being satisfied that (i) there are factors warranting the making of the application; and, (ii) even if there were, that adequate provision for the Plaintiff’s proper maintenance and advancement in life has not been made by the deceased’s Will, declines to make any order for provision for the Plaintiff out of the deceased’s estate.

(2) Orders that the proceedings be dismissed.

(3) Makes no order for the Plaintiff’s costs.

(4) Orders that the Defendant’s costs, calculated on the indemnity basis, be paid, or retained, as the case may be, out of the estate of the deceased

Catchwords:

SUCCESSION – Family provision – claim by son-in-law of the deceased – Sole residuary beneficiaries are the daughter and her husband, another son-in law of the deceased – Reasonably large estate – Dispute as to nature of Plaintiff’s relationship with deceased – Plaintiff alleges membership of the household of which the deceased was a member and partial dependency – Whether rent free accommodation given because of relationship with deceased – Whether any factors warranting the making of the application – Not so satisfied - Summons dismissed – No costs order sought against Plaintiff who had conditional costs agreement with his own solicitors

Legislation Cited:

Family Provision Act 1982 (NSW)

Probate and Administration Act 1898 (NSW)

Succession Act 2006 (NSW)

Cases Cited:

Anderson v Teboneras [1990] VR 527

Ballam & Ors v Ferro & Anor [2022] NSWSC 1200

Bezjak v Wyatt [2018] NSWSC 199

Blendell v Blendell; Blendell v Blendell [2020] NSWCA 154

Blendell v Byrne; Estate of Noeline Joan Blendell [2019] NSWSC 583

Churton v Christian (1988) 13 NSWLR 241

Devereaux-Warnes v Hall (No 3) [2007] WASCA 235

Jodell v Woods [2017] NSWSC 143

Kingsland v McIndoe [1989] VR 273

Lester v Lester; In the Estate of Dulcie Brown [2020] NSWSC 958

Lodin v Lodin [2017] NSWCA 327

Matthews v Wear [2011] NSWSC 1145

Mekhail v Hana; Mekail v Hana [2019] NSWCA 197

Nagatomi v Hudson (Supreme Court (NSW), Young J, 18 September 1997, unreported)

Oakes v Oakes [2014] NSWSC 1312

Page v Hull-Moody [2020] NSWSC 411

Page v Page [2017] NSWCA 141

Poletti v Jones (2015) 13 ASTLR 113

Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9

Porthouse v Bridge [2007] NSWSC 686

Purnell v Tindale [2020] NSWSC 746

Re Fulop, Deceased (1987) 8 NSWLR 679

Russell v NSW Trustee and Guardian [2013] NSWSC 370

Sammut v Kleemann [2012] NSWSC 1030

Singer v Berghouse (1994) 181 CLR 201

Spata v Tumino (2018) 95 NSWLR 706

Sun v Chapman [2022] NSWCA 132

Tobin v Ezekiel (2012) 83 NSWLR 757

Verzar v Verzar [2012] NSWSC 1380

White v Barron (1980) 144 CLR 431

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Brewer v Ney [2023] NSWSC 526
Case
[2023] NSWSC 526
Decision Date

CaseChat Overview and Summary

The case of Brewer v Ney was heard in the Supreme Court of South Australia. The plaintiff, Brewer, sought a family provision order under the Family Provision Act 1975 (SA) from the estate of his deceased father-in-law, Ney. Brewer's claim was made as the son-in-law of the deceased, who had left his estate to his two daughters, including Brewer's wife, as sole residuary beneficiaries. The estate was of a reasonably large amount, prompting Brewer to seek a share of it on the grounds that he had a close relationship with the deceased and was partially dependent on him.

The central legal issue before the court was whether the plaintiff had a sufficient relationship with the deceased that would warrant the court making a family provision order. This involved examining the nature of the relationship, the extent of any dependency, and the reasons for the deceased's decision to provide rent-free accommodation to Brewer. The court also needed to determine if there were any other factors that would justify a family provision order despite the deceased's clear testamentary intentions.

The court found that the plaintiff's relationship with the deceased, while familial, did not establish the degree of dependency or financial reliance that would warrant a family provision order. The evidence presented did not convincingly demonstrate that the deceased's decision to provide rent-free accommodation was influenced by a close personal relationship. Additionally, the court held that the plaintiff had failed to prove any other factors that would justify an order under the Act. Consequently, the summons was dismissed, and no costs order was sought against the plaintiff, who had a conditional costs agreement with his own solicitors.

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