Brown v Cordingley - [2007] NSWSC 1338

CITATION: Brown v Cordingley [2007] NSWSC 1338

HEARING DATE(S): 20/11/07 21/11/2007

JUDGMENT DATE :
22 November 2007

JURISDICTION: Equity Division

JUDGMENT OF: Associate Justice Macready at 1

EX TEMPORE JUDGMENT DATE: 22 November 2007

DECISION: Paragraph 76

CATCHWORDS: Family Provision. Application by son under Family Provision Act 1982. Son already provided with benefits of $1.2 million under will of deceased. Summons dismissed.

PARTIES: Gregory John Brown v Hugh Harold Cordingley

FILE NUMBER(S): SC 4098/2005

COUNSEL: Mr C Harris SC for plaintiff
Mr P Hallen SC for defendant

SOLICITORS: Diamond Conway Solicitors for plaintiff
Teece Hodgson & Ward for defendant

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THE SUPREME COURTOF NEW SOUTH WALES
EQUITY DIVISION

THURSDAY 22 NOVEMBER 2007

4098/2005 GREGORY JOHN BROWN v HUGH HAROLD CORDINGLEY

JUDGMENT

1 HIS HONOUR: This is an application under the Family Provision Act 1982 in respect of the estate of the late Coralie Lesbia Cordingley who died on 16 February 2004 aged 86 years.

2 The deceased was survived by her two children from her first marriage, Gregory Brown and Robyn Woodford and her son Hugh Cordingley from her second marriage. Both her husbands pre-deceased her.

The last will of the deceased

3 The last will of the deceased was made on 27 May 2002 in which she appointed her sons, the defendant and the plaintiff, as executors of the will.

4 In her will she forgave any debts due by her son Hugh, and she gave a bequest of her real estate, known as Mihi, Uralla to the defendant. After giving a number of small legacies she provided that any parcels of her shares listed on the Stock exchange numbering less than 100 should pass to her son Gregory. There is only one such parcel held.

5 The next bequest in clause 4 (vi) is a bequest of all of the shares which she held to be divided equally between the plaintiff and his sister Robyn. She then made a number of other bequests and forgave to the company Mihi Pty Ltd any debt owed by that company as at the date of death. In clause 6 she gave the residue of her estate to be held equally between the plaintiff Gregory and her daughter Robyn.

Assets in the estate

7 Adopting what the defendant says is the value of Mihi, this gives a gross distributable estate…

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 Brown v Cordingley

Details

AGLC: Brown v Cordingley [2007] NSWSC 1338
Case: [2007] NSWSC 1338
Decision Date: 22 November 2007

CaseChat Overview and Summary

The matter of Brown v Cordingley was brought before the court by a son seeking further provision under the Family Provision Act 1982. The deceased, who had left a will that provided benefits amounting to $1.2 million to the son, was the subject of the dispute. The son contended that the will did not adequately provide for his needs. The court was tasked with determining whether the deceased's will sufficiently provided for the son's maintenance, education, and medical needs.

The central legal issue before the court was whether the deceased's will adequately provided for the son's needs, taking into account the extensive benefits already received. The court considered the statutory criteria under the Family Provision Act 1982, which required it to assess whether the deceased's will made "reasonable financial provision" for the son. The court had to weigh the substantial financial benefits already received by the son against his current needs and the deceased's intentions as expressed in the will.

The court found that the deceased's will had provided for the son's maintenance, education, and medical needs to a reasonable extent, considering the significant assets already received. The court held that the $1.2 million already provided was sufficient to meet the son's needs, and there was no evidence to suggest that the deceased's intentions were not adequately reflected in the will. Consequently, the court dismissed the son's application, affirming that the deceased had made reasonable financial provision for his son.

In light of the court's findings, the son's summons was dismissed. The court ruled that no further provision was necessary under the Family Provision Act 1982, as the deceased had already provided adequately for the son's needs.

Orders