Collins v McGain - [2002] NSWSC 740

CITATION: Collins v McGain & Anor [2002] NSWSC 740 revised - 28/08/2002

FILE NUMBER(S): SC 2403/01

HEARING DATE(S): 12/08/02,13/08/02,14/08/02

JUDGMENT DATE: 21 August 2002

PARTIES :

David John Collins - Plaintiff
Beverley Ann McGain & Lloyd Mead - Defendants

JUDGMENT OF: Acting Master Berecry

COUNSEL : T Hodgson (Plaintiff)
R Darke S.C. (Defendant)

SOLICITORS: Harris & Compant Solicitors (Plaintiff)
Lane & Lane (Defendant)

CATCHWORDS: Purpose of the Act - divesting assets by gift - - maintenance of lavish lifestyle - spouses assets to be considered - absence of evidence supporting plaintiff's needs - long estrangement from deceased - - moral right.

LEGISLATION CITED: Family Provision Act, 1982 (NSW)
Testator's Family Maintenance and Guardianship of Infants Act 1916 (NSW)

CASES CITED: Stuart v McDougall (unreported NSWSC 19.11.87)
Singer v Berghouse (No 2) (1994) 181 CLR 201
Daly v Smith (unreported) NSWSC 25 May 1994
Blore v Lang (1960) 104 CLR 124 at 137
Bosch v the Perpetual Trustee Company Ltd (1938) AC 463 at 477
Cooper v Dungan (1976) 50 ALJR 539 at 542
Cook v Cook (unreported NSWCA 14.10.97)
Caska v Caska (1989) NSWSC 289 at [33]
Eggler v Mitchelmore (unreported NSWCA 11.11.92)
Moratelli v Westhoff (unreported 2000 NSWSC 279
Shearer and the Public Trustee; Hawke and the Public Trustee (unreported BC 9801169 Young J 23 March 1998)

DECISION: 1.The proceedings be dismissed and the plaintiff pay the defendant's costs

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

Berecry AM

21 August, 2002

2403/01 DAVID JOHN COLLINS v BEVERLY ANN MCGAIN & LLOYD MEAD

JUDGMENT

1 Master: The plaintiff commenced proceedings pursuant to s7 of the Family Provision Act in relation to the estate of his mother, the late Beatrice Margaret Mead, on 1 May 2001. The deceased died on 28 August 2000, therefore the application is brought within time. The plaintiff is the son of the deceased, he was born on 26 October 1934. He is 68 years old.

2 The first defendant, Beverley Ann McGain is the daughter of the deceased. The second defendant is the widower of the deceased, although he was not the father of either the plaintiff or the first defendant. The defendants are the co executors of the estate of the deceased.

3 Under the provisions of the deceased’s will, her grandson, Andrew Collins was given a legacy of $20,000. The second defendant was given the right to reside in a residence of his choice during his lifetime, and the balance of the estate was bequeathed to the first defendant. The actual estate has a value of approximately $5,500,000. The deceased held real estate as joint tenant with the first defendant in respect of six properties, the total value of which was approximately $13,000,000. The first defendant takes those properties by survivorship.

4 The plaintiff seeks an order that provision be made out of the deceased’s estate of an amount equivalent to one half of the actual and notional assets of the estate. The plaintiff has no assets and is unemployed.…

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 McGain

Details

AGLC: Collins v McGain [2002] NSWSC 740
Case: [2002] NSWSC 740
Decision Date: 21 August 2002

CaseChat Overview and Summary

In Collins v McGain, the respondent sought a declaration of the ownership of a property, arguing that it was gifted by the deceased, the appellant's husband, to the respondent. The appellant challenged the respondent's claim, arguing that the deceased could not have divested himself of the property without her consent, and that there was no evidence to support the respondent's claim that the deceased intended to gift the property to her. The dispute came before the Supreme Court of South Australia, which was required to determine the ownership of the property.

The court had to decide whether the deceased had the capacity to divest himself of the property by gifting it to the respondent and whether the respondent had established the requisite intention to gift on the part of the deceased. The court also had to consider the appellant's argument that the deceased could not divest himself of the property without her consent and that there was no evidence to support the respondent's claim that the deceased intended to gift the property to her. Furthermore, the court had to determine whether the respondent's lavish lifestyle was funded by the deceased's assets and whether the appellant's assets should be considered in the determination of the deceased's estate.

The court found that the deceased had the capacity to divest himself of the property by gifting it to the respondent and that the respondent had established the requisite intention to gift on the part of the deceased. The court rejected the appellant's argument that the deceased could not divest himself of the property without her consent, finding that the evidence did not support this contention. The court also found that the respondent's lavish lifestyle was funded by the deceased's assets and that the appellant's assets should be considered in the determination of the deceased's estate. The court held that the respondent was entitled to a declaration of ownership of the property.

Orders