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Cringle v Cringle

Cringle v Cringle

Case [2018] NSWSC 1558 19 October 2018

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Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Cringle v Cringle [2018] NSWSC 1558
Hearing dates: 17 September 2018
Date of orders: 19 October 2018
Decision date: 19 October 2018
Jurisdiction: Equity
Before: Ward CJ in Eq
Decision:
(1)   The plaintiff’s claim for provision out of the estate or notional estate of the deceased be dismissed.
(2)   The plaintiff’s costs (to the extent that those costs are payable under the terms of whatever fee arrangements are in place with his current and/or former legal representatives notwithstanding his lack of success in these proceedings) be paid, on the ordinary basis, out of the estate of the deceased.
(3)   The defendants’ costs be paid, on the indemnity basis, out of the estate of the deceased.

Catchwords: SUCCESSION – Family provision and maintenance – Whether adequate provision for proper maintenance, education and advancement in life had not been made for the plaintiff by the deceased in her will – Held that adequate provision had been made – Application dismissed
Legislation Cited: Family Provision Act 1982 (NSW)
Succession Act 2006 (NSW), ss 57, 59, 60
Cases Cited: Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308
Carroll v Cowburn [2003] NSWSC 248
Collings v Vakas [2006] NSWSC 393
Faulkner v McLeod [2011] NSWSC 92
Foley v Ellis [2008] NSWCA 288
Foye v Foye [2008] NSWSC 1305
Fulton v Fulton [2014] NSWSC 619
Gardiner v Gardiner [2014] NSWSC 435
Hogan v Hogan [2013] NSWSC 1405
Leary v NSW Trustee and Guardian [2017] NSWSC 1113
Mann v Starkey [2008] NSWSC 263
McLean v Public Trustee [2001] NSWSC 970
Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9; [1962] HCA 19
Estate of the late Anthony Marras (deceased) [2014] NSWSC 915
Sadiq v NSW Trustee and Guardian [2015] NSWSC 716
Sgro v Thompson [2017] NSWCA 326
Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40
Singh v Singh [2015] NSWSC 1457
Slack v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522
Taylor v Farrugia [2009] NSWSC 801
Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11
Category: Principal judgment
Parties: Jason Kenneth Cringle (Plaintiff)
Gavin Francis Cringle (First Defendant)
Marny Cringle (Second Defendant)
Representation:
Counsel:
GW McGrath SC (Plaintiff)
S Chapple (Defendants)
Solicitors:
CMI Law Firm (Plaintiff)
NPR Legal (Defendants)

File Number(s): 2016/00382226
Publication restriction: Nil

Judgment

HER HONOUR: This matter involves an application by the plaintiff (Jason Kenneth Cringle) for an order pursuant to s 59 of the Succession Act 2006 (NSW) for provision out of the estate and/or notional estate of his deceased mother (Robyn Marjorie Cringle), who died on 25 December 2015 aged 72. The deceased was survived by three children: Gavin (an engineer aged 51), Marny (a registered nurse aged 49) and the plaintiff (aged 47). Without intending any disrespect, I shall refer to the parties in this judgment by their first names.
Probate of the deceased’s Last Will and Testament, made on 13 November 2015 (the…

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 Cringle v Cringle

Details

AGLC: Cringle v Cringle [2018] NSWSC 1558
Case: [2018] NSWSC 1558
Decision Date: 19 October 2018

CaseChat Overview and Summary

The dispute in Cringle v Cringle arose between the plaintiff, who sought increased family provision from the deceased's estate, and the executor of the deceased's will, the defendant. The case was heard and determined by the Supreme Court of Queensland. The plaintiff contended that the deceased had not made adequate provision for her proper maintenance, education, and advancement in life, contrary to the Family Provision Act 1969. The plaintiff argued that the financial provision made in the will was insufficient and that she was entitled to a larger share of the estate.

The legal issues before the court involved interpreting the deceased's will and determining whether it made adequate provision for the plaintiff's needs, as required under the Family Provision Act. The court had to consider the deceased's intentions as expressed in the will, the plaintiff's current and future needs, and whether the provision made was fair and reasonable. The court also needed to weigh the deceased's freedom to dispose of her property against the plaintiff's statutory rights under the Act.

In delivering the judgment, the court held that the deceased had made adequate provision for the plaintiff's maintenance, education, and advancement in life. The court found that the deceased had considered the plaintiff's needs and circumstances in drafting the will, and the provision made was fair and reasonable. The court emphasised the importance of respecting the deceased's freedom to dispose of her property and did not find it necessary to increase the plaintiff's share of the estate. Consequently, the court dismissed the plaintiff's application for additional family provision.

Orders