Chatard v Bowen - [2008] NSWSC 533

CITATION: Chatard v Bowen [2008] NSWSC 533

HEARING DATE(S): 2 May 2008

JUDGMENT DATE :
2 June 2008

JUDGMENT OF: McLaughlin AsJ

DECISION: 1. I order, by consent and without admission, that for the purposes of these proceedings, Multiple Sclerosis Limited be appointed to represent the entity that is or may be entitled to the residuary estate of the late Jacqueline Jana Chatard (“the Deceased”).
2. In lieu of the provisions of clause 6 of the second codicil dated 23 July 2002 of the Deceased, and in addition to the other benefits given to the Plaintiff by the will of the Deceased, I order that the Plaintiff receive absolutely the house property situate at and known as 24 Forest Road, Double Bay.
3. I order that the costs of the Plaintiff on the party and party basis be paid out of the estate of the Deceased.
4. I order that the costs of the First and Second Defendants on the indemnity basis up to and including 20 November 2007 be paid out of the estate of the Deceased.
5. I order that the costs of the Third Defendant on the indemnity basis after 20 November 2007 be paid out of the estate of the Deceased.
6. The exhibits may be returned.

CATCHWORDS: SUCCESSION - family provision - claim by widower - substantial estate - long and happy marriage - Plaintiff is only eligible person - whether Plaintiff has been left without adequate provision for his proper maintenance - competing claim of residuary beneficiary.

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: Jacques Louis Chatard (Plaintiff)
Peter Bowen (First Defendant)
Susan Eve Carleton (Second Defendant)
Multiple Sclerosis Society of New South Wales (Third Defendant)

FILE NUMBER(S): SC 3691 of 2007

COUNSEL: Mr L. Ellison SC (Plaintiff)
Ms T. Vigara, solicitor (First and Second Defendants)
Mr P. Hallen SC (Third Defendant)

SOLICITORS: David Begg & Associates (Plaintiff)
Hicksons (First and Second Defendants)
Teece Hodgson & Ward (Third Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

ASSOCIATE JUSTICE McLAUGHLIN

Monday, 2 June 2008

3691 of 2007 JACQUES LOUIS CHATARD –v- PETER BOWEN and ORS

JUDGMENT

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

2 By summons filed on 19 July 2007 Jacques Louis Chatard claims an order for provision for his maintenance, education and advancement in life out of the estate of his late wife, Jacqueline Jana Chatard (to whom I shall refer as “the Deceased”).

3 The Deceased died on 1 September 2006, aged 58. She left a will dated 1 June 1992, together with two codicils thereto (dated respectively 19 December 1995 and 23 July 2002), probate of which testamentary instruments was on 25 June 2007 granted to Peter Michael Bowen and Susan Eve Carleton, two of the three executors named in such will (the third named…

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 Chatard v Bowen

Details

AGLC: Chatard v Bowen [2008] NSWSC 533
Case: [2008] NSWSC 533
Decision Date: 2 June 2008

CaseChat Overview and Summary

In the matter of Chatard v Bowen, the respondent, an elderly widower, sought family provision orders against the estate of his late wife. The wife had died intestate, leaving a substantial estate, and the respondent claimed that he had not been adequately provided for in the distribution of the estate. The estate was to be divided between the respondent and a charitable organisation, which was to receive the majority of the estate. The court was tasked with determining whether the respondent had been left without adequate provision for his proper maintenance. The respondent argued that the estate had been distributed in a way that failed to take into account the length and happiness of his marriage, while the residuary beneficiary argued that the respondent had not been left without adequate provision.

The court considered whether the respondent had been left without adequate provision for his proper maintenance, as required by statute. The court found that the length and happiness of the marriage was a relevant consideration, as was the fact that the respondent was the only eligible person to make a claim under the statute. The court also considered the competing claim of the residuary beneficiary. Ultimately, the court found that the respondent had not been left with adequate provision for his proper maintenance and that the estate should be distributed in a way that took into account the length and happiness of the marriage.

The court ordered that the estate be distributed in a way that provided the respondent with adequate provision for his proper maintenance. The court found that the respondent should receive a larger share of the estate than he would have under the original distribution. The court also found that the charitable organisation should receive a smaller share of the estate than it would have under the original distribution. The court's orders ensured that the respondent was left with adequate provision for his proper maintenance, while also taking into account the length and happiness of his marriage.

Orders