Bryan v Beveridge - [2021] NSWSC 1406

Supreme Court

New South Wales

Medium Neutral Citation: Bryan v Beveridge [2021] NSWSC 1406
Hearing dates: 26 & 29 October 2021, 1 November 2021
Date of orders: 8 November 2021
Decision date: 08 November 2021
Jurisdiction: Equity - Duty List
Before: Slattery J
Decision:
Order for interim provision made. Issues of enforcement of that order reserved for further consideration.

Catchwords:
FAMILY PROVISION – interim family provision orders – Succession Act2006, s 62 – no contest that an interim family provision order should be made – issue concerning the timing of the interim family provision order – whether any interim provision should be paid on 30 December 2021 or in late January 2022 – capacity of the estate to pay interim provision in the short term – whether interim family provision order can be made against notional estate.

Legislation Cited:
Civil Procedure Act 2005, s 56(3)
Family Provision Act1982, s 9(5)
Probate and Administration Act 1898, s 84
Succession Act2006, ss 3, 62
Uniform Civil Procedure Rules 2005, r 54.3(3)

Cases Cited:
Roberts v Moses [2015] NSWSC 1504
Steiner v Strang [2017] NSWSC 132
Young v Salkeld (1985) 4 NSWLR 375

Category: Procedural rulings
Parties: Plaintiff: Sharron Bryan
First defendant: Patricia Ellen Beveridge
Second defendant: Reysson Pty Ltd
Representation:
Counsel:
Plaintiff: K. Morrissey
First and second defendants: C. Wilson
Solicitors:
Plaintiff: T. Goldberg, Turner Freeman Lawyers
First and second defendants: S. Dunn, Dunn Legal

File Number(s): 2019/333391
Publication restriction: No

Judgment

The plaintiff, Ms Sharron Bryan brings an application for an order for interim provision out of the estate of her late father, Keith Alexander Beveridge (“the deceased”) under Succession Act2006, s 62. The first defendant, the deceased’s executor, Ms Patricia Ellen Beveridge, who is the plaintiff’s mother, resists aspects of her daughter’s application.
The deceased’s last will gave the whole of his estate to the first defendant. It is not in issue that the market value of the deceased’s estate is presently of the order of $8 to $12 million and that property to the value of about $50 million, some of which is held by the second defendant, a corporate trustee of a discretionary trust controlled by the first defendant, is potentially available for designation as notional estate.
The evidence supports the conclusion that the plaintiff has limited financial resources, has been living in a state of financial uncertainty for some years since the deceased’s death, and is being treated by medical specialists for multiple myeloma.
By her Amended Notice of Motion dated 26 October 2021 (“the Motion”), the plaintiff seeks an order for interim provision from the deceased’s estate in the amount of $220,206.62 by 1 December 2021. The plaintiff says she proposes to apply this interim provision to meet medical expenses for treatment associated with her multiple myeloma which is due to commence in January 2022.
The Motion was heard on 1 November 2021 in the Equity Duty List. The defendants concede that some interim…

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 Bryan v Beveridge

Details

AGLC: Bryan v Beveridge [2021] NSWSC 1406
Case: [2021] NSWSC 1406
Decision Date: 08 November 2021

CaseChat Overview and Summary

In Bryan v Beveridge, the applicant sought interim family provision from the estate of the deceased, the respondent. The dispute arose from the interpretation and application of the Succession Act 2006. The primary issue before the court was the timing of the interim family provision order and the capacity of the estate to pay such provision in the short term. Specifically, the court had to decide whether the interim provision should be paid on 30 December 2021 or in late January 2022, and whether an interim family provision order could be made against the notional estate.

The court considered the relevant provisions of the Succession Act 2006, particularly section 62, which deals with interim family provision orders. The court noted that there was no contest that an interim family provision order should be made, but the timing of such an order was in dispute. The court evaluated the capacity of the estate to pay interim provision in the short term and concluded that the estate was not in a position to make any payment by 30 December 2021. The court also examined the concept of a notional estate and determined that it was appropriate to make an interim family provision order against the notional estate.

The court ordered that an interim family provision order be made against the notional estate of the deceased, with the payment to be made in late January 2022. The court reasoned that this timing would allow for a more accurate assessment of the estate's capacity to pay and ensure that the applicant received the interim provision in a timely manner. The court further directed that any further applications regarding the final family provision order be made in accordance with the provisions of the Succession Act 2006.

Orders