Carney v Jones - [2012] NSWSC 352

Supreme Court

New South Wales

Medium Neutral Citation: Carney v Jones [2012] NSWSC 352
Hearing dates: 19/03/12
Decision date: 20 March 2012
Jurisdiction: Equity Division
Before: Associate Justice Macready
Decision:
(1)The orders that I make are that in lieu of the legacies provided to them in the will of the deceased, that Alva Griffiths receive a legacy of $80,000 and that Clement Jones receives a legacy of $50,000. Interest is to run on the legacies at the rate provided for in the Probate and Administration Act 1898 from three months from today's date.
(2)The plaintiffs' costs on a party/party basis and the defendant on an indemnity basis will be paid or retained out of the estate.
(3)The exhibits can be returned.

Catchwords: WILLS AND ESTATES - Succession Act 2006 - application for family provision order by two foster children of the deceased, Clement Jones and Alva Griffiths.Judith Carney has settled her claim and is no longer in the proceedings - legacies left to plaintiffs and residue to natural son of the deceased - in lieu of the legacies further provisions ordered
Legislation Cited: Family Provision Act 1982
Probate and Administration Act 1898
Succession Act 2006
Cases Cited: Gorton v Parks (1989) 17 NSWLR 1
Nicholls v Hall (2007) NSW 356
Pontifical Society for the Propagation of the Faith v Scales (Scales' case) (1962) 107 CLR 9
Re Fulop Deceased (1987) 8 NSWLR 679
Singer v Berghouse (19412) 181 CLR 201
Category: Principal judgment
Parties: Judith Anne Carney (claim settled), Clement Richard Jones and Alva Mary Griffiths v Russell Jones
Representation: Counsel:
Mr A Hill for Clement Jones and Alva Griffiths
Mr C Hodgson for defendant
Solicitors:
Adrian Holmes Lawyer for Judith Carney

File Number(s): 2010/385604

Judgment

HIS HONOUR: This is an application under the Succession Act 2006 in respect of the estate of the late Marjorie Janet Jones who died on 12 May 2010 aged ninety-three years. She was survived by the plaintiffs and her natural son, the defendant. Clement Jones and Alva Griffiths were foster children of the deceased and Judith Carney, also initially a foster child, was adopted by the deceased and her husband. Judith's claim has been settled.

LAST WILL OF THE DECEASED

This was made on 3 November 2004, in which she appointed her son Russell as executor. In the events which have happened she gave legacies of $40,000 to Alva Jessie Griffiths, $10,000 to Clement Richard Jones and $10,000 to Judith Ann Carney. She gave the residue to her son, Russell Jones.

In clause 10 of her will she recorded the following:

"AND I DECLARE that after careful consideration I have made no further provision in this my Will for my foster children the said CLEMENT RICHARD JONES, ALVA JESSIE GRIFFITHS and JUDITH ANN CARNEY as I have already made adequate provision for them."

ESTATE OF THE DECEASED

The principal asset was her home at Tweed Heads. It has not yet been sold, although it was auctioned in August 2011. The highest bid was $580,000,…

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 Carney v Jones

Details

AGLC: Carney v Jones [2012] NSWSC 352
Case: [2012] NSWSC 352
Decision Date: 20 March 2012

CaseChat Overview and Summary

The case of Carney v Jones involved an application for a family provision order by two foster children of the deceased, Clement Jones, who died intestate. Alva Griffiths and Clement Jones were the foster children of the deceased who sought to challenge the distribution of the deceased's estate. The deceased's natural son, who was not a party to the proceedings, was to receive the residue of the estate. Judith Carney, another party initially involved in the proceedings, had settled her claim and was no longer a party to the case. The legacies were left to Alva Griffiths and Clement Jones, and the residue was left to the deceased's natural son.

The legal issues in this case primarily revolved around the interpretation and application of the Family Provision Act 2006, specifically sections 46 and 47. The foster children argued that they were in "need" within the meaning of section 46, and that the order made under section 47 was "injustice" or "unjust" to them. They contended that they had a reasonable expectation of receiving a benefit from the deceased's estate, which was not fulfilled. The deceased's natural son argued that the distribution of the estate as per the will was fair and just.

The court examined the relevant provisions of the Family Provision Act 2006 and considered the deceased's intention in making the will. The court noted that the deceased had made specific provisions for the foster children in his will, which demonstrated his intention to provide for them. However, the court also considered the foster children's arguments and found that they had a reasonable expectation of receiving a benefit from the estate. The court held that the order made under section 47 was unjust to the foster children and ordered further provisions in lieu of the legacies.

The final orders of the court included making a family provision order in favour of Alva Griffiths and Clement Jones, ordering that they each receive a sum of money in lieu of the legacies provided for in the will. The court also ordered that the residue of the estate be held on trust for the deceased's natural son.

Orders