Legal Research
Cases
Dark v Dark

Dark v Dark

Case [2016] NSWSC 1223 22 August 2016

Family Provision

Adequate Provision

Informative Independent Advice

Coercion

Moral Obligation

Succession Law

No judgment structure available for this case.

Type to search within this case.

Supreme Court

New South Wales

Medium Neutral Citation: Dark v Dark [2016] NSWSC 1223
Hearing dates: 17 and 18 August 2016
Decision date: 22 August 2016
Jurisdiction: Equity - Family Provision List
Before: White J
Decision:
Refer to paras [155]-[156] of judgment.

Catchwords: SUCCESSION — Family provision — Application by the defendant under s 95 of the Succession Act 2006 (NSW) for the approval of the release of the plaintiff’s right to make an application for a family provision order — Plaintiff had previously signed an agreement releasing her right to make an application for a family provision order — Whether the Court should approve the release — The making of the release was not advantageous to the plaintiff nor fair and reasonable — Plaintiff did not receive informative independent advice before signing the agreement — Plaintiff coerced into giving the release — Release not approved — Application by the plaintiff for family provision order under Pt 3.2 of the Succession Act 2006 (NSW) — Plaintiff is the widow of the deceased — No provision made for the plaintiff under the will of the deceased —Three children of the deceased to inherit on attaining the age of 25 years — Majority of the deceased’s estate consists of the proceeds of the sale of a property sold to the deceased by his mother at a substantial undervalue — Whether adequate and proper provision not made in will of the deceased for the plaintiff — Plaintiff has no financial buffer for adverse contingencies —Plaintiff responsible for two of the deceased’s children — Deceased’s moral obligation to attempt to ensure his children have a stable financial environment in which to grow up not provided for — Provision made for the plaintiff out of the estate of the deceased
Legislation Cited: Children Act 1989 (UK)
Evidence Act 1995 (NSW)
Family Law Act 1975 (Cth)
Minors (Property and Contracts) Act 1970 (NSW)
NSW Trustee and Guardian Act 2009 (NSW)
Probate and Administration Act 1898 (NSW)
Succession Act 2006 (NSW)
Trustee Act 1925 (NSW)
Cases Cited: Gillick v West Norfolk & Wisbech Area Health Authority [1986] AC 112
Hewer v Bryant [1970] 1 QB 357
Mayfield v Lloyd-Williams [2004] NSWSC 419
M'Creight v M'Creight (1849) 13 I Eq R 314
Mulcahy v Weldon [2001] NSWSC 474
Neil v Jacovou [2011] NSWSC 87
Re Agar-Ellis (1883) 24 Ch D 317
Re B and B: Family Law Reform Act 1995 (1997) 21 Fam LR 676
Russell v Quinton [2000] NSWSC 322
Secretary, Department of Health and Community Services v JWB and SMB (Marion's case) (1992) 175 CLR 218
Singer v Berghouse [1994] 181 CLR 201
Vigolo v Bostin (2005) 221 CLR 191
Texts Cited: Blackstone's Commentaries, 17th ed (1830)
Cretney, Principles of Family Law, 3rd ed (1979)
Macpherson's Law Relating to Infants (1842)
Simpson on the Law of Infants, 4th ed (1926)
Category: Principal judgment
Parties: Joeanne Marie Dark (Plaintiff)
Aaron Andrew Dark (Defendant)
Representation:
Counsel:
H W Somerville (Plaintiff)
J P Lo Schiavo (Defendant)
Solicitors:
Johnsons Solicitors…

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 Dark v Dark

Details

AGLC: Dark v Dark [2016] NSWSC 1223
Case: [2016] NSWSC 1223
Decision Date: 22 August 2016

CaseChat Overview and Summary

In the case of Dark v Dark, the plaintiff, the widow of the deceased, sought family provision from the estate of her deceased husband. The deceased's will made no provision for the plaintiff, instead providing for their three children to inherit the majority of the estate upon reaching the age of 25 years. The estate predominantly consisted of proceeds from the sale of a property sold to the deceased by his mother at a substantial undervalue. The plaintiff argued that the will did not make adequate and proper provision for her, as she had no financial buffer for adverse contingencies and was responsible for two of the deceased’s children. Additionally, the deceased's moral obligation to provide a stable financial environment for his children was not fulfilled.

The court was required to determine whether the release of the plaintiff’s right to apply for a family provision order should be approved. This involved assessing whether the release was advantageous to the plaintiff and whether it was fair and reasonable, considering she did not receive independent advice before signing the agreement. The court also needed to decide if the plaintiff was coerced into giving the release. Furthermore, the court had to evaluate whether adequate and proper provision was made in the deceased's will for the plaintiff, given her financial responsibilities and the deceased's moral obligations.

The court found that the release of the plaintiff’s right to apply for a family provision order was not advantageous to her and was not fair and reasonable. The plaintiff had not received informative independent advice before signing the agreement and was coerced into giving the release. Consequently, the release was not approved. The court also determined that adequate and proper provision was not made in the will for the plaintiff. Given her financial responsibilities and the deceased's moral obligations, the court found that the will did not provide a stable financial environment for the children.

As a result, the court ordered that the deceased's estate should provide for the plaintiff out of the estate, ensuring she had adequate and proper provision.

Orders