1. In lieu of the provisions in clauses 6 and 7 of the will of the deceased the following provisions shall apply: (b) A legacy of $250,000 to the Gzira Parish Church, Manoel Street, Gzira, Malta. (b) The residue of the estate to the plaintiff absolutely. 2. Interest on the legacy in 1(a) to be paid at the rates provided for in the Probate & Administration Act 1898 on and from three months from today’s date. 3. The plaintiff’s costs on the ordinary basis and the defendant’s costs on an indemnity basis be paid or retained out of the estate of the deceased. 4. I order time be extended.
CATCHWORDS:
Family Provision. Application for provision by same sex partners who was left a life estate. Application out of time by 11 years. Consideration of explanantion and change of heart. Time extended and order in favour of the plaintiff.
CATEGORY:
Principal judgment
PARTIES:
Robert Edward Burton v Ronald William Moss
FILE NUMBER(S):
SC 2352/08; 2008/278299
COUNSEL:
Mr M Meek SC for plaintiff Mr J Armfield for defendant
SOLICITORS:
Tress Cox Lawyers for plaintiff Maurice Buckley CT Poole & Son for defendant
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IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION
Associate Justice Macready
Monday 22 March 2010
2352/2008 Robert Edward Burton v Ronald William Moss (Estate of the late Raymond Lawrence Dominic Cuschieri)
JUDGMENT
1 His Honour: this is the hearing of an application under the Family Provision Act 1982 (“the Act”) in respect of the late Raymond Lawrence Dominic Cushieri who died on 15 December 1995, aged 42 years. He was survived by the plaintiff with whom the deceased had lived in a de facto relationship for many years.
The last will of the deceased
2 By his will dated 7 December 1995, probate of which was granted to the defendant on 6 November 1996, the deceased made the following provisions.
3 The deceased gave his sister Margaret Fenech (“Margaret”):
The proceeds of the Mid Med bank account (but for $8,000).
The painting of the Monks in the Gallery.
All photos and photo albums.
4 The deceased requested Margaret Fenech to:
Give $4,000 to his nephew Neil.
Give $2,000 for a Mass for the repose of his sole at the Mt Carmel Parish Church, Gzira, Malta (the Church).
Invest $2,000 for the purchase of flowers for each feast occurring on the second Sunday in July each year.
5 The residue of the estate was to be held on trust to allow the plaintiff the use and enjoyment of XX Langlee Avenue, Waverley and its contents for life. The plaintiff was to be responsible for the maintenance of the property and payment of outgoings.
6 On the death of the plaintiff:
Half of the contents to the plaintiff’s estate and the other half to form part of residue.
The residue…
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.
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AGLC
Burton v Moss [2010] NSWSC 163
Case
[2010] NSWSC 163
Decision Date
CaseChat Overview and Summary
In the case of Burton v Moss, the plaintiff, Burton, sought provision from the estate of Moss, who had left Burton a life estate. The dispute arose when Burton applied for provision from the estate, which was out of the statutory time limit by 11 years. The court was required to decide whether the delay was sufficiently explained and whether there had been a change of heart by Burton. The court considered the application under the Family Provision Act, examining the evidence of Burton's explanation for the delay and the circumstances that led to the change of heart. The court found that the delay was sufficiently explained and that there had been a change of heart, extending the time and making an order in favour of Burton. The court's decision highlights the importance of considering explanations and changes of heart in family provision applications, even where there is a significant delay. The final orders of the court were that the application be considered out of time and that an order be made in favour of the plaintiff, Burton.