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Burke v Burke

Burke v Burke

Case [2014] NSWSC 1015 25 July 2014

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Burke v Burke [2014] NSWSC 1015
Hearing dates: 21 July 2014
Decision date: 25 July 2014
Jurisdiction: Equity Division
Before: Rein J
Decision:
Summons dismissed.

Catchwords: EQUITY - Succession - claim for family provision order under Succession Act s 59 - Where applicant is an adult child of deceased - Where applicants are eligible persons - Where deceased did not make provision for applicant in will - Whether adequate provision made for proper maintenance, education and advancement in life of applicants - Considerations under Succession Act s 60(2) - Estrangement
Legislation Cited: Succession Act 2006 (NSW)
Cases Cited: Andrew v Andrew [2012] NSWCA 308
Dodds v Dodds [2013] NSWSC 1933
Dolman v Parker [2005] NSWCA 361
Ford v Simes [2009] NSWCA 351
Goldberg v Landerer [2010] NSWSC 1431
In the Estate of the late Anthony Marras [2014] NSWSC 915
Keep v Bourke [2012] NSWCA 64
Raiola v Raiola [2014] NSWSC 967
Singer v Berghouse (1994) 181 CLR 201
Vigolo v Bostin (2005) 221 CLR 191
Category: Principal judgment
Parties: Terence John Burke (Plaintiff)
Alan Michael Burke (Defendant)
Representation: Counsel:
R Wilson SC (Plaintiff)
L Ellison SC (Defendant)
Solicitors:
Armstrong Legal (Plaintiff)
Swaab Attorneys (Defendant)

File Number(s): 2013/184983

Judgment

These proceedings concern the estate of the late Beryl Veronica Burke ("the deceased") who died aged 93 years of age on 30 June 2012. The deceased is survived by her three adult children Terence John Burke ("the plaintiff") aged 69 years, Alan Michael Burke ("the defendant") aged 66 and Diana Royds ("Diana") aged 61 years. Mr R Wilson SC appears for the plaintiff. Mr L Ellison SC appears for the defendant.

By her will dated 23 June 2003 the deceased appointed the defendant as her Executor and on 28 August 2012 the defendant was granted probate.

By her will the deceased left a legacy of $100,000 to Stephen Burke (the son of the plaintiff) ("Stephen") and the balance was to be divided equally between the defendant and Diana. Nothing was given to the plaintiff.

The plaintiff seeks an order pursuant to s 59 of the Succession Act 2006 (NSW) ("the Act") that provision be made to him of a capital sum of $400,000 which will enable him to purchase a two bedroom house on the Sunshine Coast of Queensland at a value of between $385,000 and $425,000. During closing submissions Mr Wilson indicated that an amount of $300,000 might be sufficient based on Exh A which was an alternate costing of a house.

There is agreement that the estate has a net value of approximately $1.25 million (after anticipated legal costs of the estate) and the payment of the balance of the legacy to Stephen.

S 59 of the Act relevantly provides:

(1) The Court may, on application under Division 1, make a family provision order in relation to the estate of a deceased person, if the Court is satisfied…

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 Burke v Burke

Details

AGLC: Burke v Burke [2014] NSWSC 1015
Case: [2014] NSWSC 1015
Decision Date: 25 July 2014

CaseChat Overview and Summary

In Burke v Burke, the applicant, an adult child of the deceased, sought a family provision order under section 59 of the Succession Act. The dispute arose because the deceased had not made any provision for the applicant in their will, despite the applicant being an eligible person under the Act. The court was required to determine whether the deceased had made adequate provision for the proper maintenance, education, and advancement in life of the applicants, considering all relevant factors outlined in section 60(2) of the Succession Act. This included assessing the nature of the relationship between the deceased and the applicant, as well as the extent of any estrangement that may have occurred between them.

The court examined the evidence presented regarding the deceased's financial situation, the extent of their estate, and the needs of the applicants. The applicant argued that the deceased had not made adequate provision for their maintenance, education, and advancement in life. The court also had to consider the estrangement between the deceased and the applicant, which was a significant factor in the deceased's decision not to provide for the applicant in their will. In making its decision, the court balanced the needs of the applicant against the deceased's right to dispose of their property as they saw fit, taking into account the estrangement and the applicant's lack of financial dependence on the deceased.

After considering all the evidence and relevant factors, the court determined that the deceased had made adequate provision for the proper maintenance, education, and advancement in life of the applicants. The court found that the estrangement between the deceased and the applicant was a significant factor in the deceased's decision not to provide for the applicant in their will. The court also noted that the applicant had not demonstrated any financial dependence on the deceased and had been able to support themselves independently. As a result, the court dismissed the applicant's claim for a family provision order.

Orders