Chapman v Hudson - [2006] NSWSC 373

CITATION: Chapman v Hudson [2006] NSWSC 373

HEARING DATE(S): 01/05/06

JURISDICTION: Equity Division

JUDGMENT OF: Young CJ in Eq

EX TEMPORE JUDGMENT DATE: 05/01/2006

DECISION: Dismiss the plaintiff's claim under Family Provision Act 1982 with costs.

CATCHWORDS: SUCCESSION [311]- Testator's family provision and maintenance- Testatrix's will entitled oldest two children to live in testatrix's house- Although plaintiff, as the third child, left with insufficient provision estate too small to accommodate her as house would have to be sold to satisfy claim- Sale of house would defeat testatrix's intention to provide a home for at least two of her children.

LEGISLATION CITED: Family Provision Act 1982, ss 7, 10

CASES CITED: Singer v Berghouse (1994) 181 CLR 201

PARTIES: Annette Marie Chapman (P)
Shirley Anne Hudson (D)

FILE NUMBER(S): SC 6511/04

COUNSEL: J Trebeck (P)
G McNally (D)

SOLICITORS: Garden & Montgomerie (P)
Matthews Dooley & Gibson (D)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

YOUNG CJ in EQ

Monday 1 May 2006

6511/04 - CHAPMAN v HUDSON

JUDGMENT

1 HIS HONOUR: These proceedings are a daughter's application under the Family Provision Act 1982 with respect to the estate of the late Joan Mary Hudson, whom I will describe as the testatrix.

2 The testatrix died on 11 May 2003 having first made her last will on 19 August 1997. Probate of that will was granted to the defendant, another daughter of the testatrix, on 16 September 2003. The testatrix had four children; Christopher, now aged 50; Shirley, the defendant, aged 49; Annette, the plaintiff, aged 45, and Phillip aged 40.

3 The only assets the testatrix owned at the time of her death were her home at 19 Koorabel Road, Lalor Park, and a small amount of cash. The will provided that Shirley and Christopher:

“May live in the house as long as they wish provided they pay all rates and taxes and other outgoings and all premiums for insurance policies effected by the Trustee in respect of the house and contents and keeps it in repair to the satisfaction of the Trustee, having regard to its condition at the date of my death."

4 When Shirley and Christopher had ceased to live permanently in the house, the house was to form part of the residue of the estate, which residue was to pass to the four children equally.

5 For some reason or other the executor distributed $1077.44 to each of the children on 12 December 2003. This included a distribution to the plaintiff.

6 Accordingly, at present the only asset in the estate is the house. The parties have agreed that this has a value of approximately $270,000. The plaintiff's solicitor has indicated that the costs of the plaintiff of these proceedings would be about $30,000 and the defendant's solicitors have said that the estate's costs are $28,500.

7 I have been greatly assisted by the digest of the estate provided by Mr Trebeck of counsel, who appears for the plaintiff, and by the…

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 Chapman v Hudson

Details

AGLC: Chapman v Hudson [2006] NSWSC 373
Case: [2006] NSWSC 373
Decision Date: 05/01/2006

CaseChat Overview and Summary

In the case of Chapman v Hudson, the matter was brought before the court to address a dispute concerning the interpretation of a testatrix's will. The testatrix had left a will which entitled her two oldest children to occupy her house. The third child, the plaintiff, sought to challenge the will on the grounds of insufficiency of provision. The court was tasked with determining whether the estate was too small to make the provisions of the will effective and whether selling the house to satisfy the plaintiff's claim would defeat the testatrix's intention to provide a home for at least two of her children.

The legal issues before the court were whether the estate was too small to make the provisions of the will effective and whether selling the house would defeat the testatrix's intention. The court considered the testatrix's intention to provide a home for her two oldest children and whether the estate could accommodate this intention if the house had to be sold to satisfy the plaintiff's claim. The court also considered whether the estate was too small to make the provisions of the will effective.

The court held that the estate was too small to make the provisions of the will effective. The court found that the sale of the house would defeat the testatrix's intention to provide a home for at least two of her children. Therefore, the plaintiff's claim was dismissed. The court held that the estate was too small to make the provisions of the will effective and that selling the house would defeat the testatrix's intention to provide a home for at least two of her children.

No further orders were made by the court. The court found that the estate was too small to make the provisions of the will effective and that selling the house would defeat the testatrix's intention to provide a home for at least two of her children. Therefore, the plaintiff's claim was dismissed.

Orders