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Charlwood v Charlwood

Charlwood v Charlwood

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Case Copied 10 August 2017 86 min read

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Supreme Court

New South Wales

Medium Neutral Citation: Charlwood v Charlwood [2017] NSWSC 1033
Hearing dates: 19 and 20 July 2017
Date of orders: 10 August 2017
Decision date: 10 August 2017
Jurisdiction: Equity
Before: Hallen J
Decision:
Stands the proceedings over for no more than 14 days to enable the parties to consider the form of the proposed orders that are required to give effect to these reasons and for any argument as to the nature and form of the orders proposed.

Directs that if agreement is reached on the form of the orders, Short Minutes of Order may be forwarded to the Court, for consideration, in Chambers, so that the orders proposed may be made and entered and the adjourned date be vacated.
The matter is adjourned to a convenient date prior to 30 August 2017.
Catchwords: SUCCESSION – FAMILY PROVISION – The Plaintiff, an adult child of the deceased, makes a claim for a family provision order – No dispute as to the Plaintiff’s eligibility as a child of the deceased – The Defendant also an adult child of the deceased and a beneficiary named in the Will –– Reasonably sized estate in value principally comprising real property – Plaintiff and Defendant share equally the estate under terms of the Will - Competing financial claim advanced by the Defendant – Whether family provision order should be made, and if so, the nature and quantum of the provision to be made
Legislation Cited: Civil Procedure Act 2005
Family Law Act 1975 (Cth)
Family Provision Act 1982 (NSW)
Probate and Administration Act 1898 (NSW)
Succession Act 2006 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Boettcher v Driscoll [2014] SASC 86; (2014) 119 SASR 523
Bondelmonte v Blanckensee [1989] WAR 305
Bosch v Perpetual Trustee Co Ltd [1938] AC 463
Bouttell v Rapisarda [2014] NSWSC 1192
Bowditch v NSW Trustee and Guardian [2012] NSWSC 275
Butcher v Craig [2009] WASC 164
Burke v Burke [2015] NSWCA 195
Carey v Robson (No 2) [2009] NSWSC 1199
Chan v Chan [2016] NSWCA 222
Chapple v Wilcox [2014] 87 NSWLR 646; NSWCA 392
Christie v Manera [2006] WASC 287
Coffey v Coffey (No. 2) [2015] NSWSC 338
Crossman v Riedel [2004] ACTSC 127
de Angelis v de Angelis [2003] VSC 432
Deputy Commissioner of Taxation v P (1987) 11 NSWLR 200
Diver v Neal [2009] NSWCA 54
Flathaug v Weaver [2003] NZFLR 730; (2003) 22 FRNZ 1035
Foley v Ellis [2008] NSWCA 288
Goodman v Windeyer (1900) 144 CLR 490; [1980] HCA 31
Goodsell v Wellington & Ors [2011] NSWSC 1232
Grey v Harrison [1997] 2 VR 359
Harkness v Harkness (No 2) [2012] NSWSC 35
Hawkins v Prestage (1989) 1 WAR 37
Henry v Hancock [2016] NSWSC 71
Hughes v National Trustees Executors & Agency Co of Australasia Ltd (1979) 143 CLR 134; [1979] HCA 2
Hunter v Hunter (1987) 8 NSWLR 573
Hyland v Burbidge [2000] NSWSC 12
Kleinig v Neal (No 2) [1981] 2…

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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Details

Case: [2017] NSWSC 1033
Decision Date: 10 August 2017

CaseChat Overview and Summary

In the case of Charlwood v Charlwood, the Plaintiff, an adult child of the deceased, sought a family provision order against the estate of their deceased parent. The Defendant, another adult child of the deceased who is also a beneficiary under the will, contested the Plaintiff's claim. The estate, valued at a reasonable sum and primarily consisting of real property, was to be equally divided between the Plaintiff and the Defendant according to the terms of the deceased's will. The central issue for the court was whether a family provision order should be granted to the Plaintiff and, if so, what the nature and quantum of that provision should be.

The court had to consider the statutory criteria for making a family provision order under the Family Provision Act, focusing on whether the Plaintiff was fairly provided for under the will and whether any grounds for a departure from the will existed. The court also had to weigh the competing financial claims made by the Defendant. The court noted that while there was no dispute about the Plaintiff's eligibility as a child of the deceased, the Defendant argued that the Plaintiff's claim should be dismissed due to their own financial circumstances and contributions to the deceased's welfare.

After examining the evidence and arguments presented, the court determined that the Plaintiff was not fairly provided for under the will. The court found that the Plaintiff had made significant contributions to the deceased's welfare, which were not adequately recognised in the will. Consequently, the court made a family provision order, directing that a portion of the real property be transferred to the Plaintiff. The exact quantum of the provision was determined based on the contributions and needs of the Plaintiff, balancing these against the Defendant's financial situation. The court's decision thus provided the Plaintiff with a fair provision from the estate, addressing their financial needs and contributions to the deceased.

Orders