Cannings v Cannings - [2010] NSWSC 87

CITATION: Cannings v Cannings [2010] NSWSC 87

HEARING DATE(S): 28 and 29 October 2009

JUDGMENT DATE :
19 February 2010

JUDGMENT OF: McLaughlin AsJ

DECISION: 1. I order that, in lieu of the legacy of $25,000 given to her by the will of the late George William Cannings (“the Deceased”) but in addition to the various other benefits given to her by that will, the Plaintiff receive a legacy in the sum of $364,000, such legacy not to bear interest if paid on or before 19 March 2010, and if not so paid to bear interest at the rates prescribed for unpaid legacies by the Probate and Administration Act 1898.
2. I order that the costs of the Plaintiff on the party and party basis and the costs of the Defendants on the indemnity basis be paid out of the estate of the Deceased.
3. The exhibits may be returned.

CATCHWORDS: SUCCESSION - family provision - claim by elderly widow - financial and material circumstances of Plaintiff - Defendants concede that will does not make adequate provision for Plaintiff - competing claims of residuary beneficiaries - appropriate provision to be made for Plaintiff.

LEGISLATION CITED: Family Provision Act 1982

CATEGORY: Principal judgment

CASES CITED: Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201
Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 19

PARTIES: Florence May Grace Cannings (Plaintiff)
Jeffrey David Cannings (First Defendant)
Bryan John Cannings (Second Defendant)
John William Cannings (Third Defendant)

FILE NUMBER(S): SC 4598 of 2008

COUNSEL: Mr R. Quickenden and G. Dilworth (Plaintiff)
Mr C. Harris SC (Defendants)

SOLICITORS: J. J. Lees and Associates (Plaintiff)
Pricewaterhouse Coopers (Defendants)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

ASSOCIATE JUSTICE McLAUGHLIN

Friday, 19 February 2010

4598 of 2008 FLORENCE MAY GRACE CANNINGS –v- JEFFREY DAVID CANNINGS and ORS

JUDGMENT

1 HIS HONOUR : These are proceedings under the Family Provision Act 1982.

2 By summons filed on 5 September 2008 Florence May Grace Cannings claims an order for provision for her maintenance and advancement in life out of the estate and/or notional estate of her late husband George William Cannings (to whom I shall refer as “the Deceased”).

3 The Deceased died on 13 March 2008, aged 82 years. He left a will dated 11 September 2007, probate whereof was on 22 September 2008, granted to Jeffrey David Cannings, Bryan John Cannings and John William Cannings, the executors named in such will (who are the Defendants to the present proceedings). The inventory of property discloses assets having a total estimated value of about $1,927,000. The chief assets are an interest in a rural property at Trunkey Creek in New South Wales ($1,300,000); a 50 per cent interest in a house property situate at and known as 32 Tudawali Crescent, Kariong, New South Wales ($185,000); and moneys held in various bank accounts and on term deposits (totalling about $348,000).

4 The Kariong property was the matrimonial home of the Deceased and the Plaintiff,…

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 Cannings v Cannings

Details

AGLC: Cannings v Cannings [2010] NSWSC 87
Case: [2010] NSWSC 87
Decision Date: 19 February 2010

CaseChat Overview and Summary

The matter of Cannings v Cannings was heard by the Family Court of Australia. The plaintiff, Mrs. Cannings, an elderly widow, sought to challenge the adequacy of the provisions made for her in the will of her late husband, Mr. Cannings. The defendants, the residuary beneficiaries of the estate, conceded that the will did not make adequate provision for the plaintiff. The legal issue for the court was to determine the appropriate financial provision to be made for Mrs. Cannings, balancing her needs against the claims of the residuary beneficiaries.

The court considered the financial and material circumstances of the plaintiff, including her age, health, and capacity to maintain herself. The court also examined the competing claims of the residuary beneficiaries and their respective interests in the estate. In making its decision, the court applied the principles established in relevant family provision legislation and case law. The court recognised the importance of ensuring that the deceased's wishes, as expressed in the will, were not entirely disregarded, while also acknowledging the need to provide for the plaintiff's reasonable financial needs.

After considering all relevant factors, the court determined that an appropriate provision should be made for Mrs. Cannings. The court ordered that a specific sum be paid to the plaintiff from the estate, which would provide for her reasonable financial needs while also taking into account the interests of the residuary beneficiaries. This outcome balanced the competing interests of the parties and provided for the plaintiff's reasonable financial needs in accordance with the relevant legislation and case law. The court's decision provided guidance for future family provision claims in similar circumstances.

Orders