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Collins v Hawkes

Collins v Hawkes

Case [2025] NSWSC 316 4 April 2025

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Supreme Court

New South Wales

Medium Neutral Citation: Collins v Hawkes [2025] NSWSC 316
Hearing dates: 21 October 2024, 15 November 2024
Date of orders: 4 April 2025
Decision date: 04 April 2025
Jurisdiction: Equity
Before: Meek J
Decision:
Finding that the plaintiff ought receive by way of further provision the deceased’s half interest in the Brightwaters’ matrimonial property — Parties directed to bring in short minutes of order and to address costs.

Catchwords:
SUCCESSION — Family provision — Deceased survived by de facto spouse of a 27 year relationship and by his child from a prior marriage — Deceased left a relatively large estate including an interest in a matrimonial home Brightwaters purchased in 2019 and co-owned with the plaintiff —Deceased’s 2013 Will predated the acquisition of the Brightwaters property such that provision regarding a prior matrimonial property adeemed — Deceased’s relationship with the plaintiff had been conducted upon arrangements or understandings regarding financial responsibilities as between them and the nature of the testamentary disposition which the deceased proposed to make for her, which at no stage ever included all of his share in the matrimonial property so as to give her an outright interest in such property — Plaintiff claimed she had been left with inadequate provision in particular with respect to accommodation — Finding that there ought to be an order for provision that the plaintiff receive the deceased’s half interest in the Brightwaters (matrimonial) property
SUCCESSION — Family provision — Claim for provision — For the Court to meaningfully assess claims, appropriate detail regarding how the claimant’s existing position is said to be inadequate and what is sought be way of provision ought to provided — In particular where accommodation provision is sought, the evidence should include detail regarding the alleged inadequacy of the existing accommodation, alternative accommodation possibilities and, where one possibility is renovation or other work to be done in respect of existing accommodation, costing in that regard
SUCCESSION — Family provision — Orders for provision — Nature of provision to be made — Whether absolute interest in matrimonial home, life estate, Crisp order, or other form of provision should be made — Finding that provision should be made for the plaintiff of an absolute interest in matrimonial home in addition to the interest she receives under the 2013 Will
SUCCESSION — Family provision — s 61 Succession Act — Disregarding interests — Prior to the commencement of the hearing, no steps had been taken to locate and serve a potentially eligible child of the deceased’s first wife who appears to have lived with the deceased for a limited period of time, no more than a couple of years — Practitioners should ensure that potentially eligible persons are identified, located and served with a Notice of Claim or that evidence seeking to disregard their interests is marshalled and provided well prior to the hearing so that the hearing may proceed in an orderly way and completed, to avoid costs and uncertainty — Hearing was…

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 Collins v Hawkes

Details

AGLC: Collins v Hawkes [2025] NSWSC 316
Case: [2025] NSWSC 316
Decision Date: 04 April 2025

CaseChat Overview and Summary

In the matter of Collins v Hawkes, the deceased was survived by his de facto spouse, the plaintiff, with whom he had a 27-year relationship, and by his child from a prior marriage. The deceased's estate was substantial and included an interest in a matrimonial home at Brightwaters, co-owned with the plaintiff. The deceased had executed a will in 2013, which predated the acquisition of the Brightwaters property, thus rendering the provisions regarding a prior matrimonial property adeemed. The plaintiff claimed she had been left with inadequate provision, particularly in relation to accommodation.

The court was required to determine the adequacy of the plaintiff's provision in light of the deceased's arrangements and understandings regarding financial responsibilities, as well as the nature of the testamentary disposition proposed for her. The court also needed to assess whether the plaintiff's claim was adequately supported by specific details regarding the inadequacy of her existing accommodation, alternative accommodation possibilities, and any necessary renovations or costs involved.

The court found that the plaintiff should receive the deceased's half interest in the Brightwaters property as an absolute interest in addition to the interest she received under the 2013 Will. This decision was based on the understanding that the deceased had never intended for the plaintiff to have an outright interest in the matrimonial property. Additionally, the court noted the importance of identifying and serving potentially eligible persons before the hearing, to avoid delays and additional costs. As a result of the court's findings, an order was made for the plaintiff to receive the deceased's half interest in the Brightwaters property.

Orders