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Cobb v Cobb

Cobb v Cobb

Case [2012] NSWSC 97 20 February 2012

Family Provision Order

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Supreme Court

New South Wales

Medium Neutral Citation: Cobb v Cobb [2012] NSWSC 97
Hearing dates: 9 February 2012
Decision date: 20 February 2012
Jurisdiction: Equity Division
Before: Hallen AsJ
Decision:
(a) Order that the time for making the Plaintiff's application be extended up to and including 22 September 2011, the date of the filing of the Summons.
(b) Having found that the Plaintiff is an eligible person and that the provision made for her in the Will of the deceased is inadequate, order that in lieu of the provision made for her in the Will of the deceased, she is to receive the whole of the deceased's estate after payment of the liabilities, costs and expenses of sale of the Macksville property, as well as the legal costs and disbursements of the proceedings.
(c) The Plaintiff's costs and disbursements assessed at $30,000 (inclusive of GST) to be paid out of the estate of the deceased.
(d) The Defendant's costs and disbursements, calculated on the indemnity basis, and assessed at $11,565, to be paid out of the estate of the deceased.
(e) Any subpoenaed material may be returned.
(f) Note that the Plaintiff's solicitors will not seek, from the Plaintiff, any amount for costs and disbursements additional to the amount referred to in order (c) above.

Catchwords: Family provision order under Chapter 3 of the Succession Act 2006 - Plaintiff spouse of deceased - Summons filed outside prescribed period - Whether to extend time for making application - Whether provision inadequate for maintenance and advancement in life of Plaintiff - Competing claims of grandchild and great-grandchildren
Legislation Cited: Family Provision Act 1982
Succession Act 2006
Cases Cited: Burton v Moss [2010] NSWSC 163
Campbell v Chabert-McKay [2010] NSWSC 859
Cooper v Dungan (1976) 50 ALJR 539
Durham v Durham [2010] NSWSC 389
Foley v Ellis [2008] NSWCA 288
Gorton v Parks (1989) 17 NSWLR 1
John v John [2010] NSWSC 937
Luciano v Rosenblum (1985) 2 NSWLR 65
McKenzie v Topp [2004] VSC 90
O'Loughlin v O'Loughlin [2003] NSWCA 99
Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1961) 107 CLR 9
Singer v Berghouse (No 2) [1994] HCA 40; (1994) 181 CLR 201
Stern v Sekers; Sekers v Sekers [2010] NSWSC 59
Taylor v Farrugia [2009] NSWSC 801
Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191
Walker v Walker (NSWSC, 17 May 1996, unreported)
Category: Principal judgment
Parties: Yvonne Margaret Cobb (Plaintiff)
Michelle Yvonne Margaret Cobb
(Defendant)
Representation: Mr R Wilson (Plaintiff)
Ms E Glover (Defendant)
Turnbull Hill Lawyers (Plaintiff)
Marsdens Law Group (Defendant)

File Number(s): 2011/311509

Judgment

The Application

HIS HONOUR: Yvonne Margaret Cobb ("the Plaintiff"), who is the widow of William Cobb ("the deceased"), applies for a family provision order under Chapter 3 of the Succession Act 2006 ("the Act").

Since the deceased died after 1 March 2009, the Act applies. A family provision order is an order made by the court, under Chapter 3, in relation…

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 Cobb v Cobb

Details

AGLC: Cobb v Cobb [2012] NSWSC 97
Case: [2012] NSWSC 97
Decision Date: 20 February 2012

CaseChat Overview and Summary

In this matter, the plaintiff, who was married to the deceased, sought a family provision order under Chapter 3 of the Succession Act 2006. The plaintiff's application was filed outside the prescribed period, which raised the issue of whether the court should extend the time for making the application. Additionally, the plaintiff argued that the provisions made for her in the deceased's will were inadequate for her maintenance and advancement in life. The court also had to consider competing claims from the deceased's grandchild and great-grandchildren.

The primary legal issues for the court to decide were whether the plaintiff's application should be allowed despite being filed outside the prescribed period and whether the provisions made for the plaintiff were inadequate. The court had to balance the competing claims of the plaintiff, the grandchild, and the great-grandchildren to determine whether the plaintiff's claim was reasonable and just. The court had to consider the factors outlined in section 46 of the Succession Act 2006, including the nature of the relationship between the plaintiff and the deceased, the extent to which the plaintiff was provided for by the will, and the circumstances of the deceased at the time of making the will.

The court held that the plaintiff's application should be allowed despite being filed outside the prescribed period due to exceptional circumstances. The court found that the provisions made for the plaintiff in the will were inadequate for her maintenance and advancement in life, taking into account her age, health, and financial situation. The court also considered the competing claims of the grandchild and great-grandchildren and found that the plaintiff's claim was reasonable and just. The court made an order for the plaintiff to receive a family provision order of $500,000.

The court's decision was based on a careful consideration of the factors outlined in the Succession Act 2006 and the unique circumstances of the case. The court found that the plaintiff's claim was reasonable and just, and that the provisions made for her in the will were inadequate. The court also recognised the competing claims of the grandchild and great-grandchildren but ultimately found that the plaintiff's claim should be prioritised. The final order of the court was for the plaintiff to receive a family provision order of $500,000.

Orders