Burns v Milne - [2000] NSWSC 351

CITATION: Burns v Milne [2000] NSWSC 351 revised - 1/05/2000

CURRENT JURISDICTION: Equity Division

FILE NUMBER(S): SC 2189/98

HEARING DATE(S): 27th and 28th March 2000

JUDGMENT DATE: 28 March 2000

PARTIES :

Marjorie Doris Burns v John Charles Milne

JUDGMENT OF: Master Macready at 1

COUNSEL : Mr F. Curtis for plaintiff
Mr P. Biggins for defendant

SOLICITORS: Kirby & Associates for plaintiff
Johnston Brien & Associates for defendant

CATCHWORDS: Family Provision. Application by a daughter. Provision made for daughter varied. No matter of principle.

CASES CITED: Singer & Berghouse (1994) 181 CLR 201.
Shearer v Public Trustee

DECISION: Paragraph 33

- 1-
THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
MASTER MACREADY
Tuesday 28 March 2000
2189/98 - MARJORIE DORIS BURNS v JOHN CHARLES MILNE
JUDGMENT
1 MASTER: This is an application under the Family Provision Act in respect of the estate of the late Colin James Burns who died on 1 November 1996 aged 77 years. The deceased was survived by his three children, one of whom is the plaintiff. The deceased's wife predeceased him having died on 6 October 1979. By his last will made on 30 August 1990 the deceased left his children his two properties but in unequal shares. Clauses 3 and 4 of his will were in the following terms:

"I give my property at 6 Coomea Street, Bomaderry being Lot 18 in section 9 deposited plan 2886 equally to my three children namely Robert Graham Burns of 142 Hereford Street Forest Lodge, Marjorie Doris Burns of 10 Karowa Street, Bomaderry and Christine Lorraine Milne of 225 Woodhill Mountain Road Berry.

I give my property at 8 Lakeview Drive, Lakeview Heights Bermagui being Lot 47 in deposited plan 213407 together with all of the contents of that property equally to my son the said Robert Graham Burns and my daughter the said Christine Lorraine Milne. I have not given my daughter the said Marjorie Doris Burns any interest in this property because of her treatment of me after she left 6 Coomea Street Bomaderry in late 1981 and later her treatment of her siblings Robert and Christine regarding their jointly owned property at 10 Karowa Street Bomaderry."

2 Other than some small gifts he gave the residue of his personalty to his three children equally. 3 The estate consisted of two properties which are referred to in the will and each had a value, according to the parties, of $130,000. There was a car worth $4,000 and cash of some $3,335. 4 In these proceedings the plaintiff and the defendant have incurred costs. On the defendant's part there is some $15,200 - I assume that includes administration costs. The plaintiff's costs amount to $14,733. If the plaintiff obtains an order on her favour, leaving aside differences between the plaintiff and the deceased and the plaintiff and her siblings, this leaves an estate having a value of some $237,000 less selling expenses. 5 It is useful to deal with some of the chronology…

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 Burns v Milne

Details

AGLC: Burns v Milne [2000] NSWSC 351
Case: [2000] NSWSC 351
Decision Date: 28 March 2000

CaseChat Overview and Summary

Burns v Milne involved a dispute within a family regarding the distribution of an estate. The daughter, the applicant, sought an increase in the provision made for her under the deceased's will. The case was heard in the Supreme Court of Victoria. The central issue was whether the court should increase the provision made to the applicant under the deceased's will, as she contended that the original provision was inadequate.

The court considered whether the applicant's circumstances warranted a departure from the deceased's expressed wishes in their will. The deceased had made provision for the applicant, but she argued that additional funds were necessary to meet her needs. The court was required to balance the deceased's testamentary freedom with the applicant's right to be provided for under the Family Provision Act. The court also needed to determine if there was a matter of principle that justified altering the deceased's intentions.

The court concluded that while the applicant's situation was unfortunate, it did not constitute a matter of principle that would warrant varying the deceased's will. The deceased had exercised their testamentary freedom by making specific provisions in their will, and the court was not satisfied that there was a compelling reason to depart from those wishes. The court found that the applicant's circumstances, although difficult, did not rise to the level of a matter of principle. Consequently, the court dismissed the application, upholding the deceased's will as it stood. The final orders were that the applicant's application be dismissed with costs.

Orders