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Cooper v Atkin

Cooper v Atkin

Case [2020] NSWSC 828 30 June 2020

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Supreme Court

New South Wales

Medium Neutral Citation: Cooper v Atkin [2020] NSWSC 828
Hearing dates: 16 April 2020
Date of orders: 30 June 2020
Decision date: 30 June 2020
Jurisdiction: Equity
Before: Hallen J
Decision:
The Court orders:
1. The amended Summons filed 24 April 2019 be dismissed.
2. If costs cannot be agreed within seven days, written submissions can be made within ten days thereafter, and the issue of costs will be determined on the papers.

Catchwords:
SUCCESSION – Family provision – Claim by adult step-child of the deceased for provision under Ch 3 of the Succession Act 2006 (NSW) – Eligible person – No dispute as to eligibility under s 57(1)(e) of the Act – Whether factors which warrant the making of the application – Court finds factors which warrant the making of the application – Court not satisfied that adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made by the will of the deceased – If that conclusion wrong – As a matter of discretion Court not satisfied that order should be made – Summons dismissed

Legislation Cited:
Family Provision Act 1982 (NSW)
Inheritance (Provision for Family and Dependants) Act 1975 (UK), c 63
Practice Note SC Eq 7, par 24
Probate and Administration Act 1898 (NSW), s 86
Succession Act 2006 (NSW), s 3, ss 57, 58, 59, 60, 61, 63, 65, 66, 72, 84, 91, 99

Cases Cited:
Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308
Bkassini v Sarkis [2017] NSWSC 1487
Boettcher v Driscoll (2014) 119 SASR 523; [2014] SASC 86
Borebor v Keane (2013) 11 ASTLR 96; [2013] VSC 35
Bowditch v NSW Trustee and Guardian [2012] NSWSC 275
Bowyer v Wood (2007) 99 SASR 190; [2007] SASC 327
Burke v Burke (No 2) (2015) 13 ASTLR 313; [2015] NSWCA 195
Carey v Robson (No 2) [2009] NSWSC 1199
Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392
Dannawi v Dannaway [2019] NSWSC 1287
de Angelis v de Angelis [2003] VSC 432
Detheridge v Detheridge [2019] NSWSC 183
Devereaux-Warnes v Hall (No 3) (2007) 35 WAR 127; [2007] WASCA 235;
Diver v Neal (2009) 2 ASTLR 89; [2009] NSWCA 54
Estate Pascale [2016] NSWSC 443
Foley v Ellis [2008] NSWCA 288
Forsyth v Sinclair (No 2) (2010) 28 VR 635; [2010] VSCA 195
Freeman v Jaques [2006] 1 Qd R 318; [2005] QCA 423
Golosky v Golosky [1993] NSWCA 111
Goodchild v James (1994) 13 WAR 229
Goodman v Windeyer (1980) 144 CLR 490; [1980] HCA 31
Goodsell v Wellington [2011] NSWSC 1232
Gorton v Parks (1989) 17 NSWLR 1
Grant v Roberts; Smith v Smith; Roberts v Smith; Curtis v Smith [2019] NSWSC 843
Graziani v Graziani (Supreme Court (NSW), Cohen J, 20 February 1987, unrep)
Hampson v Hampson (2010) 5 ASTLR 116; [2010] NSWCA 359
Harkness v Harkness (No 2) [2012]…

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 Cooper v Atkin

Details

AGLC: Cooper v Atkin [2020] NSWSC 828
Case: [2020] NSWSC 828
Decision Date: 30 June 2020

CaseChat Overview and Summary

The matter of Cooper v Atkin was heard by the Supreme Court of New South Wales. The deceased, Mr. Atkin, had passed away leaving behind his estate, which included his home and various financial assets. His adult step-daughter, Ms. Cooper, sought provision under Chapter 3 of the Succession Act 2006 (NSW) for maintenance, education, or advancement in life. Ms. Cooper's eligibility under section 57(1)(e) of the Act was not contested; the primary legal issue was whether the factors warranted the making of the application.

The court examined the relevant factors, including the nature of the relationship between Ms. Cooper and Mr. Atkin, her financial circumstances, and the provisions made for her in the will. The court found that there were indeed factors which warranted the making of the application. However, after considering the deceased's intention, the court was not satisfied that adequate provision for Ms. Cooper's proper maintenance, education, or advancement in life had not been made by the will. The court further considered the exercise of its discretion and determined that an order should not be made in favour of Ms. Cooper. Consequently, the summons was dismissed.

The Supreme Court's decision concluded that while Ms. Cooper's claim was warranted, the deceased's estate provided sufficient means for her maintenance, education, and advancement in life, thereby not necessitating further provision under the Act. The court's reasoning and final orders reflected a careful balance of the statutory criteria and the deceased's evidential intentions as expressed in the will.

Orders