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Campbell v Hemmings

Campbell v Hemmings

Case [2015] NSWSC 1592 29 October 2015

Family Provision and Maintenance

Succession Act 2006

Succession Law

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Campbell v Hemmings [2015] NSWSC 1592
Hearing dates: 22 October 2015
Decision date: 29 October 2015
Jurisdiction: Equity
Before: Kunc J
Decision:
Order for provision made

Catchwords: FAMILY PROVISION AND MAINTENANCE – Claim by adult only child where entire estate left to great grandchildren - Succession Act 2006, ss 59, 60, 66
Legislation Cited: Succession Act 2006 (NSW)
Cases Cited: Camernik v Reholc [2012] NSWSC 1537
Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72
Verzar v Verzar [2014] NSWCA 45
West v Mann [2013] NSWSC 1852
Category: Principal judgment
Parties: Denver Campbell (Plaintiff)
Andrew Jackson Hemmings as executor of the will of John Bernard Jackson (First defendant)
Kaine Anthony Devine as executor of the will of John Bernard Jackson (Second defendant)
Representation:
Counsel:
M. Pringle (Plaintiff)
G. Waugh and M. Fleeton (First and Second Defendants)
Solicitors:
Bale Boshev Lawyers (Plaintiff)
W.A. Baxter & Co. Pty Ltd (Defendants)

File Number(s): 2013/381284
Publication restriction: No

Judgment

Summary

The plaintiff is Ms Denver Campbell. She is now 48 years old and is the only child of the late John Bernard Jackson (“Mr Jackson”). He died on 26 October 2013 at the age of 75. Without disrespect, I shall refer to the plaintiff and several others who feature in this judgment by their given names.
Mr Jackson made his will on 14 June 2011 (the “Will”). He made no provision for Denver and left almost his entire estate to two of his great-grandchildren, Rhiannon (now aged nearly 11) and Ashton (now aged 9).
In addition to Denver, Mr Jackson’s partner, Ms Deanna Cummins, is the only eligible beneficiary in the estate. Family provision proceedings brought by Deanna have been settled.
Mr Jackson’s estate (the “Estate”) had a sworn value for probate of approximately $830,000.
By summons filed on 19 December 2015 Denver applies for provision out of the Estate under s 59 of the Succession Act 2006 (NSW) (the “Act”). Ms M. Pringle of Counsel appeared for Denver. Mr G. Waugh of Counsel appeared with Ms M. Fleeton of Counsel for the defendant executors of the Will, who are Mr Jackson’s nephew and great-nephew.
The only matter in issue was the amount of provision that should be ordered for Denver. The Court has decided she should receive provision of $350,000. There will be a consequential adjustment to the rights of Rhiannon and Ashton.

The Act

Part 3.2 of the Act deals with family provision orders. Division 1 of that part identifies, in s 57, who are “eligible persons who may apply to the Court for a family provision order in respect of the estate of a deceased person”. Section 58(2) requires an application for a family provision order to “be made not later than 12 months after the date of the death of the deceased person, unless the Court otherwise orders on sufficient cause being shown”.
Division 2 of Part 3.2 of the Act deals with determination of applications…

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 Campbell v Hemmings

Details

AGLC: Campbell v Hemmings [2015] NSWSC 1592
Case: [2015] NSWSC 1592
Decision Date: 29 October 2015

CaseChat Overview and Summary

In the Family Court of Australia, Campbell v Hemmings involved a dispute concerning the distribution of an estate under the Succession Act 2006. The case was brought by the only child of the deceased, who sought additional provision from the estate. The deceased had left the entire estate to their great-grandchildren, bypassing the child entirely. The legal question before the court was whether the child's claim for provision from the estate was valid, given the specific bequests to the great-grandchildren.

The court had to determine if the deceased's will was validly executed and whether the provisions made were in accordance with the statutory framework of the Succession Act 2006. Specifically, the court examined sections 59 and 60, which pertain to the rights of a child to make a claim for provision from their parent's estate, and section 66, which addresses the court's discretion in making orders for provision. The court also needed to balance these statutory rights against the explicit wishes of the deceased as expressed in their will.

The court found that the deceased had validly executed the will, and the bequests to the great-grandchildren were valid. However, the court recognised the statutory rights of the child to make a claim for provision. The court exercised its discretion under section 66 of the Succession Act 2006 and ordered that the child receive a reasonable provision from the estate. The court's decision emphasised the importance of the statutory rights of children to seek provision from their parent's estate, even where the parent had made specific bequests in their will. The final orders included a monetary payment to the child from the estate, ensuring that their statutory rights were upheld.

Orders