Close v Close - [2001] NSWSC 668

CITATION: Close v Close [2001] NSWSC 668

CURRENT JURISDICTION: Equity Division

FILE NUMBER(S): SC 2015/00

HEARING DATE(S): 30 July 2001

JUDGMENT DATE:
30 July 2001

PARTIES :

Rhonda Louise Close
(Plaintiff)
v
Jeffrey Ian Close
(Defendant)

JUDGMENT OF: Acting Master Berecry

COUNSEL : P: Mr J Millar
D: Mr P Walsh

SOLICITORS: P: Rita Thakur & Associates
D: Simpson & Harrison

CATCHWORDS: Family Provision Act - freedom of testamentary intention - significant medical problems of the parties - quality of relationship - spendthrift - lack of evidence re assets - breach of duty by executor - unrealistic expectations

LEGISLATION CITED: Family Provision Act 1982, s 7

CASES CITED: Bondy v Vavros (Young J, 29/8/88, unrep)
Howarth v Reed (Powell J, 15/4/91, unrep)

DECISION: See paragraphs 47 and 48.

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

ACTING MASTER BERECRY
MONDAY, 30 JULY 2001

2015/00 - RHONDA LOUISE CLOSE v JEFFREY IAN CLOSE

JUDGMENT

1 MASTER: The matter before me today is an application under s 7 of the Family Provision Act, 1982 ("the Act") brought by Rhonda Louise Close, a daughter of the deceased, the late Jean Close. The defendant in these proceedings is Jeffrey Ian Close, the brother of the plaintiff. Mr Close is the executor of his mother's estate.

2 The starting point of any application under the Act is a consideration of the testamentary intention of the deceased. It is trite to say that a court cannot interfere with the testamentary intention of a testator or testatrix, except in a limited number of circumstances. The Act allows a court to interfere with the intention in certain circumstances, however, such interference is constrained by the Act itself and by the authorities that have flowed from the cases that have been heard under this piece of legislation.

3 There are, in evidence before me, three wills made by the deceased. There is the will dated 21 April 1994, which was admitted to probate, and there are two earlier wills, one dated 8 December 1987 and one dated 15 April 1990.

4 The will that was admitted to probate makes provision for each of the three surviving children of the deceased. However, the will provides that the defendant is to receive the real estate together with furniture, fittings, fixtures, appliances and utensils therein. The residue of the deceased's estate is bequeathed equally to the three surviving children, that is, the defendant, the plaintiff and another sister.

5 The inventory of property shows that the estate has one major asset. The plaintiff, at one stage, thought that the property at Sans Souci was worth $600,000. For the purposes of probate the value was given at $525,000. It subsequently sold for less than that. Nevertheless, that was the most significant asset in the estate.

6 The balance of the estate consisted of moneys held in bank accounts, debenture stock and some shares. In total, those items came to an amount of just over $24,000. The Sans Souci property was sold…

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 Close v Close

Details

AGLC: Close v Close [2001] NSWSC 668
Case: [2001] NSWSC 668
Decision Date: 30 July 2001

CaseChat Overview and Summary

In the case of Close v Close, the primary dispute was between a daughter and her father, who had recently passed away. The daughter sought provisions from her father's estate under the Family Provision Act 1969 (NSW), alleging that her father had neglected her and had a strained relationship with her. The case was heard in the Supreme Court of New South Wales. The daughter claimed that her father had significant medical problems and that their relationship had been marked by conflict and lack of support. She argued that her father's failure to provide for her in his will was unjust, given the circumstances.

The court was required to determine several key legal issues. Firstly, it had to assess whether the daughter's expectations of receiving provisions from her father's estate were reasonable. Secondly, it needed to consider the quality of the relationship between the daughter and her father, and how this affected the father's freedom of testamentary disposition. The court also had to examine whether the father's significant medical issues and the daughter's own health problems influenced his decision-making. Finally, the court needed to decide if the executor of the estate had breached any duties in the administration of the will.

The court found that the daughter's expectations were unrealistic, given the father's financial constraints and the nature of their relationship. The evidence showed that the father had made efforts to provide for his daughter, albeit not in the manner she desired. The court emphasised the importance of the father's freedom to dispose of his property as he saw fit, and that the daughter's claims were not substantiated by the evidence presented. The court also highlighted the lack of evidence regarding the father's assets and the potential for mismanagement by the executor. The daughter's claims were dismissed, and the court upheld the validity of the father's will.

Orders