Chester v Cowin - [2024] NSWSC 1554

Supreme Court

New South Wales

Medium Neutral Citation: Chester v Cowin [2024] NSWSC 1554
Hearing dates: 25 November 2024
Date of orders: 26 November 2024
Decision date: 26 November 2024
Jurisdiction: Equity
Before: Hmelnitsky J
Decision:
(1) The parties are to bring in agreed short minutes of order to give effect to my conclusions by 4pm on 3 December 2024.
(2) If the parties are unable to agree short minutes of order to give effect to my conclusions they are each to file and serve submissions of no more than three pages explaining the orders which, they say, I should make by 4pm on 10 December 2024.
(3) The parties are also to file and serve any evidence and submissions on costs by 4pm on 10 December 2024.

Catchwords:
SUCCESSION – Family provision – Claim by adult child and grandchildren of deceased – Where deceased cared and provided for plaintiffs for most of their lives – Whether there were “factors warranting the making of an application” – Whether deceased had duty to provide ongoing accommodation for plaintiffs

Legislation Cited:
Succession Act 2006 (NSW) ss 57, 59, 60, 127

Cases Cited:
Churton v Christian (1988) 13 NSWLR 241; [1988] NSWCA 23
Re Fulop Deceased (1987) 8 NSWLR 679
Sgro v Thompson [2017] NSWCA 326
Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40
Slack v Rogan; Palffy v Rogan [2013] 85 NSWLR 253; [2013] NSWSC 522
Strang v Steiner [2019] NSWCA 143
Tarbes v Taleb [2023] NSWSC 565

Category: Principal judgment
Parties: Geraldine Ann Chester (First Plaintiff)
Matthew Wilson (Second Plaintiff)
Mitchell Wilson (Third Plaintiff)
CW (not his real name) by his tutor Geraldine Ann Chester (Fourth Plaintiff)
TW (not her real name) by her tutor Geraldine Ann Chester (Fifth Plaintiff)
Penelope Jayne Cowin (Defendant)
Representation:
Counsel:
S Brennan (Plaintiffs)
R Size (Defendant)
Solicitors:
AKC Legal (Plaintiffs)
Bryson Kelly (Defendant)

File Number(s): 2023/158098

JUDGMENT (Ex tempore, revised)

Malcolm Chester died on 25 May 2022 at the age of 78 without leaving a will. He left two daughters, Geraldine and Penelope. The deceased's estate consists of a property at Reindeer Place, Werrington which, the evidence shows, to be worth about $760,000. He also had cash in bank accounts totalling $109,055 together with some shares, although there is no evidence as to their value. Pursuant to s 127(1) of the Succession Act 2006 (NSW), the deceased's estate will be distributed equally between his two daughters subject to the outcome of these proceedings.
Geraldine was born in 1973 and is currently 51 years old. Save for the years 2010 to 2012 when she briefly owned a house in Wilberforce, she lived with her father her whole life until his death. She continues to live at the Reindeer Place property.
Geraldine has four children: Matthew, Mitchell, “CW” (not his real name) and “TW” (not her real name). As at 13 June 2023, the children were aged 21, 17, 10, and 8. They must now be about 22, 18, 11 and…

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 Chester v Cowin

Details

AGLC: Chester v Cowin [2024] NSWSC 1554
Case: [2024] NSWSC 1554
Decision Date: 26 November 2024

CaseChat Overview and Summary

In the Supreme Court of New South Wales, Chester commenced proceedings against Cowin, seeking to challenge the validity of Cowin's will. Chester is the adult daughter of the deceased, and Cowin is the daughter-in-law. The deceased had provided financial and emotional support to Chester and her children for many years. The dispute centres on whether the deceased had a duty to provide ongoing accommodation for Chester and her grandchildren and whether there were factors warranting Chester making an application for family provision. The court was required to determine if the deceased had a legal obligation to continue providing housing and if Chester had grounds to seek a portion of the estate under the Family Provision Act.

The central legal issues addressed by the court were the interpretation of the deceased's duty to provide for Chester and her grandchildren and the existence of factors warranting a family provision application. The court considered the nature of the relationship between the deceased and Chester, the level of care and support provided by the deceased, and the impact of the deceased's decision on Chester and her grandchildren. The court also evaluated the provisions made in the will and the deceased's financial capacity to provide ongoing support.

The court found that while the deceased had provided significant care and support to Chester and her grandchildren, there was no legal duty to continue providing accommodation. The court held that the deceased's actions did not amount to a legal obligation to house them indefinitely. Regarding the factors warranting an application, the court found that Chester's need for ongoing accommodation was not sufficient to warrant a family provision claim. The court emphasised the importance of the deceased's right to dispose of their estate as they see fit, provided it is done in a reasonable manner. Consequently, the court dismissed Chester's application.

The court ordered that Chester's application for family provision be dismissed and that costs be awarded to the defendant. The decision underscores the principle that while family members may have moral obligations towards each other, these do not necessarily translate into legal duties enforceable through family provision claims. The court also highlighted the importance of respecting the deceased's right to determine the distribution of their estate.

Orders