17 and 18 August 2020, 25 September 2020, 11 December 2020
Date of orders:
9 February 2021
Decision date:
09 February 2021
Jurisdiction:
Equity
Before:
Robb J
Decision:
Order for further provision made in favour of plaintiff. See par [198].
Catchwords:
SUCCESSION — Family provision — Claim by adult child — Whether inadequate and proper provision made for the plaintiff and, if so, the nature and quantum of the provision to be made — where the plaintiff has numerous and significant ailments — where the plaintiff has no superannuation or fund to preserve him against the vicissitudes of life — where it is alleged that the plaintiff and his former spouse are either in a de facto relationship or a relationship of financial interdependence — where, consequently, it is alleged that there has not been a full and frank disclosure of the former spouse’s financial circumstances — where the Court accepts that the plaintiff and his former spouse do not have a de facto relationship or a relationship of financial interdependence — where there is no basis for the submission that there was some default in the evidence provided that leaves open the possibility that the financial resources available to the plaintiff are significantly greater than acknowledged — where there was a level of estrangement between the deceased and the plaintiff — where legal costs have resulted in a significant diminution of the deceased’s estate — further family provision ordered.
Neil William Coote (plaintiff) Brian Thomas Coote (defendant)
Representation:
Counsel: K Morrissey (plaintiff) C Hodgson (defendant)
Solicitors: Cicero Legal (plaintiff) Turnbull Hill Lawyers (defendant)
File Number(s):
2019 / 171193
Judgment
Mrs Adelaide Rosemary Coote was born on 4 December 1918. She died on 15 June 2018 at the age of 99 years.
Mrs Coote's last will was dated 28 November 2013. Mrs Coote left two sons. The elder, Brian Thomas Coote was 75 years of age at the time of her death. Her younger son, Neil William Coote, was then 73.
Without meaning any disrespect, I will refer to the two sons by their first names. It will also be convenient to refer to the other witnesses by their first names, after I introduce them.
By her last will, Mrs Coote made Brian her executor. Probate of the will was granted to Brian by this…
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.
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Details
AGLC
Coote v Coote [2021] NSWSC 59
Case
[2021] NSWSC 59
Decision Date
CaseChat Overview and Summary
In the Family Court of Australia, the matter of Coote v Coote was heard and determined. The plaintiff, an adult child of the deceased, brought a claim for family provision against the estate of the deceased. The central issue for the court was whether the deceased had made adequate and proper provision for the plaintiff, and if not, what the nature and quantum of that provision should be. The plaintiff, who suffers from numerous and significant health issues, argued that he had not been provided for adequately. The defendant contested the claim, asserting that the plaintiff’s financial circumstances were not as dire as alleged, and that there was an alleged relationship with the plaintiff’s former spouse that could impact the financial resources available to the plaintiff.
The court examined the nature of the relationship between the plaintiff and the deceased, as well as the financial disclosures made by the plaintiff and the former spouse. The court found that the plaintiff and his former spouse did not have a de facto relationship or a relationship of financial interdependence. It was further determined that there was no evidence suggesting any default in the financial disclosures that would imply the plaintiff’s resources were greater than acknowledged. The court also considered the level of estrangement between the deceased and the plaintiff, as well as the impact of legal costs on the estate. Given these findings, the court concluded that the plaintiff had not been provided for adequately.
In light of these findings, the court ordered additional family provision to be made to the plaintiff. The court emphasised the plaintiff's significant health issues, the lack of superannuation or a fund to support him, and the level of estrangement from the deceased. The court directed that further financial provision be made to the plaintiff to ensure his adequate support.