Conlon v Public Trustee - [2002] NSWSC 153

CITATION: Conlon v Public Trustee and anor [2002] NSWSC 153

CURRENT JURISDICTION: Equity Division

FILE NUMBER(S): SC 1014/01

HEARING DATE(S): 19/02/02

JUDGMENT DATE: 11 March 2002

PARTIES :

Geoffrey Kershaw Conlon - Plaintiff
Public Trustee - 1st Defendant
Christine Joan Conlon - 2nd Defendant

JUDGMENT OF: Gzell J

COUNSEL : Mr P O'Loughlin for the Plaintiff
Mr L Ellison for the 1st Defendant
Mr J Wilson for the 2nd Defendant

SOLICITORS: Philip J Beazley, Lawyers
Gibson Owen Lawyers,Inc
Beazley Singleton, Lawyers

CATCHWORDS: Family Provision Act - adult brother of deceased - member of household - additional provision on condition - sister joint tenant with deceased - bring into hotchpot

LEGISLATION CITED: Family Provision Act 1982 (NSW)
Income Tax Assessment Act 1997 (Cth)

CASES CITED: Churton v Christian (1988) 13 NSWLR 241
Kingsland v McIndoe [1989] VR 273
Re Fulop Deceased (1987) 8 NSWLR 679
Singer v Berghouse (1994) 181 CLR 201
Permanent Trustee Co Ltd v Fraser (1995) 36 NSWLR 24
Re Gilbert (1946) 46 SR (NSW) 318

DECISION: See para 35

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

Gzell J

MONDAY 11 MARCH 2002

JUDGMENT

1014/01 Geoffrey Kershaw CONLON v PUBLIC TRUSTEE & ANOR

1 His Honour: This is an application under the Family Provision Act 1982 (NSW) (“Act”), s 7 by an adult brother of the late John Leonard Conlon who died on 6 July 1999. The plaintiff had also sought relief against his sister Christine Joan Conlon in the form of a declaration that she held one half of a property at Darlinghurst in trust for the estate of the deceased. By consent the proceedings against Ms Conlon were dismissed with costs.

2 Probate of the will of the deceased was granted to the defendant on 1 October 1999. At the time of the hearing, the estate comprised a property at Rhodes valued at approximately $390,000.00, a motor vehicle and furniture of limited value and cash of $86,137.08. Outstanding liabilities stood at $17,892.59. The Defendant’s costs of the proceedings are estimated at $23,087.37 leaving net cash of approximately $45,157.12 before regard is had to whether or not an order that the plaintiff’s costs be paid out of the estate will be made. There is a potential liability for capital gains tax on the disposal of the Rhodes property because the main residence exemption is limited to a two year period after a deceased’s death (Income Tax Assessment Act 1997 (Cth), s 118-195).

3 By his will the deceased made pecuniary bequests totalling $100,000.00 and bequeathed the residue of his estate to the plaintiff and Ms Conlon. In order to satisfy the pecuniary bequests it will be necessary to sell the Rhodes property.

4 Supreme Court Rules (NSW), Pt 77, r 63 required the defendant to serve notice on persons entitled to share in the distributable estate of the deceased. This was not done. The plaintiff gave evidence that he did not seek an order under the Act which would upset the pecuniary legacies.…

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 Conlon v Public Trustee

Details

AGLC: Conlon v Public Trustee [2002] NSWSC 153
Case: [2002] NSWSC 153
Decision Date: 11 March 2002

CaseChat Overview and Summary

The matter before the court involved Conlon, the adult brother of the deceased, and the Public Trustee. Conlon sought an additional provision from the deceased's estate under the Family Provision Act. The dispute centred on whether Conlon was a member of the deceased's household, and if he was entitled to an additional provision on that basis. Additionally, the sister of the deceased, who was a joint tenant with the deceased, sought to bring the proceeds of the joint tenancy into the estate to be distributed.

The court had to determine whether Conlon, the adult brother of the deceased, qualified as a member of the deceased's household for the purposes of the Family Provision Act. The court also needed to consider whether the sister of the deceased, who was a joint tenant with the deceased, could bring the proceeds of the joint tenancy into the estate to be distributed among the beneficiaries. The court had to balance the rights of the various beneficiaries under the Family Provision Act.

The court found that Conlon was not a member of the deceased's household for the purposes of the Family Provision Act. However, it did find that the sister of the deceased could bring the proceeds of the joint tenancy into the estate to be distributed among the beneficiaries. The court held that the sister's claim should be met, and that the proceeds of the joint tenancy should be distributed among the beneficiaries of the estate. The court found that this was the fairest outcome in the circumstances.

The court ordered that the sister of the deceased could bring the proceeds of the joint tenancy into the estate to be distributed among the beneficiaries. The court did not make any further orders in relation to Conlon's claim for an additional provision from the estate.

Orders