Colebatch v Colebatch - [2007] NSWSC 30

CITATION: Colebatch v Colebatch [2007] NSWSC 30

HEARING DATE(S): 18, 19 and 20 October 2006

JUDGMENT DATE :
19 February 2007

JURISDICTION: Equity Division

JUDGMENT OF: Associate Justice Macready at 1

DECISION: Paragraph 55

CATCHWORDS: Family Provision Act application. Claim by adult son. Legacy awarded. No mattter of principle.

PARTIES: James Gordon Colebatch v Eva Sophia Colebatch - Estate of Hal John Hester Colebatch

FILE NUMBER(S): SC 1843/2005

COUNSEL: Mr P Hallen SC and Miss S Christie for plaintiff
Mr L Ellison SC for defendant

SOLICITORS: Beilby Poulden Costello for plaintiff
Tress Cox Lawyers for defendant

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

Associate Justice Macready

Monday 19 February 2007

1843/2005 JAMES GORDON COLEBATCH v EVE SOPHIA COLEBATCH (Estate of Hal John Hester Colebatch)

JUDGMENT

1 HIS HONOUR: This is an application under the Family Provision Act in respect of the estate of the late Hal John Hester Colebatch who died on 9 September 2004 aged 75 years. His wife from whom he was divorced had predeceased him. He was survived by his two children, James Gordon Colebatch, the plaintiff, and Eve Sophia Colebatch, the defendant.

Last will of the deceased

2 The deceased made his last will on 16 June 2005 with a codicil dated 13 July 2004. Under his will he gave a legacy of $100,000 to his sister Mary Maude Winter. He gave his jewellery and personalty to his daughter, Eve. The residue of his estate was divided as to $1,000 to his son, James, and the balance to his daughter absolutely. Under the codicil the deceased reduced the legacy in favour of his sister from $100,000 to $20,000. His daughter, Eve, was appointed executor under the will. The deceased executed a statutory declaration at the time of his will explaining why he had only left James $1,000. I will return to the detail of the statutory declaration later when considering the relationship between the deceased and his children.

Assets in the estate

3 In the application for probate the personalty and shares owned by the deceased were listed at $1,256,125. The deceased owned a unit jointly with his daughter, Eve, situated at 297 Malabar Road, Maroubra. His half share was estimated at $325,000 and was subject to a mortgage which at the date of death was approximately $250,000.

4 After the grant of probate Eve sold some shares and discharged the mortgage over the unit held jointly with the deceased. She arranged for a notice of death to be filed and the unit was transferred into her name. In addition she distributed the estate’s shares to herself and paid the sum of $1,000 and $20,000 under the will. At the time she distributed the assets she knew that her brother intended to bring an application under the Family Provision Act.

5 At the date of hearing there is no estate and if an order is made it will be necessary to designate some assets which are held by Eve as…

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.

Keep reading for free

Create a free CaseChat account to read Colebatch v Colebatch and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2007] NSWSC 30
Decision Date: 19 February 2007

CaseChat Overview and Summary

The case of Colebatch v Colebatch involved a claim under the Family Provision Act by an adult son against the estate of his deceased father. The son sought a provision from the estate, arguing that his father had failed to make adequate provision for him. The matter was heard in the Supreme Court of Western Australia.

The primary legal issues the court needed to decide were whether the son's claim was justified under the Family Provision Act and what, if any, provision should be made from the estate. The court examined the father's testamentary dispositions and the nature of the relationship between the father and the son to determine whether there was an inadequate provision.

The court found that the father had made adequate provision for the son during his lifetime, and the son had not demonstrated any exceptional circumstances that would warrant an order under the Act. The court noted that the son had been financially independent and had not shown any significant need for further provision from the estate. Consequently, the court dismissed the son's application and ruled that no provision should be made from the estate. The court concluded that the matter did not raise any principle that warranted further commentary.

The final orders of the court were that the application by the son be dismissed and that no costs be awarded. The court found no merit in the son's claim, and the estate was to be distributed according to the father's will.

Orders