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David Wesley Fraser v Joseph Simmonds

David Wesley Fraser v Joseph Simmonds

Case [2014] NSWSC 654 22 May 2014

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Supreme Court

New South Wales

Medium Neutral Citation: David Wesley Fraser v Joseph Simmonds [2014] NSWSC 654
Hearing dates: 13, 18 December 2013
Decision date: 22 May 2014
Jurisdiction: Equity Division
Before: Kunc J
Decision:
Order for provision made

Catchwords: FAMILY PROVISION AND MAINTENANCE - Adult grandson - No issue of principle - Succession Act 2006, ss 59, 60
Legislation Cited: Succession Act 2006 (NSW)
Cases Cited: Camernik v Reholc [2012] NSWSC 1537
Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72
Verzar v Verzar [2014] NSWCA 45
West v Mann [2013] NSWSC 1852
Category: Principal judgment
Parties: David Wesley Fraser (Plaintiff)
Joseph Simmonds and Marnie Louise Platt (Defendants)
Representation: Counsel: Mr K. Morrissey (Plaintiff)
Mr R. Wilson SC (Defendant)
Solicitors: Frankham Family Lawyers (Plaintiff)
Mr Robert Palmer (Defendants)

File Number(s): 2013/37447
Publication restriction: No

Judgment

Summary

The plaintiff is a grandson of the late Melba Katrina Rich ("Mrs Rich"). Mrs Rich died on 7 February 2012 at the age of 84. By her will made on 29 July 2010 Mrs Rich left: $10,000 to her son William James Rich; $50,000 each to William's children Melanie Rich, Gregory Rich and Lynette Missingham; $10,000 to her daughter Margaret Mildred Fraser (the plaintiff's mother); $20,000 to Margaret's daughter Marnie Louise Platt (the plaintiff's sister); and $10,000 to Margaret's son, David Wesley Fraser (the plaintiff). Mrs Rich also left $50,000 each to her three great grandchildren Michaela Platt, Alyssa Kirkham and Brianna Kirkham. In addition Mrs Rich left $5,000 to her friend and neighbour Marie Kazzi, $40,000 to the Royal North Shore Hospital, Artarmon, $20,000 to the Children's Hospital, Westmead and $20,000 to the Guide Dogs NSW/ACT. The residue of her estate was left to Marnie Louise Platt. Probate was granted on 13 September 2012.

Without disrespect, I shall refer to the parties and above beneficiaries by their given names. They are the only eligible beneficiaries of the estate.

The defendants Joseph Simmonds and Marnie are respectively the nephew and grand-daughter of Mrs Rich and the executors appointed under her will. Probate was granted to them on 13 September 2012.

The estate comprised two properties, 52 XXXX Road, Auburn, NSW (the "Auburn property"), and 51 XXXX Street, Toowoomba, Qld (the "Queensland property"), some household furniture and approximately $8,000 in savings. The Auburn property was sold in June 2012 and the net proceeds of sale were $560,668. The deceased's estate comprises a bank account containing $521,892; $10,890 held in the defendants' solicitors trust account; and, the Queensland property valued at $150,000. The total value of Mrs Rich's estate is $682,782.

By summons filed on 6 February 2013, David applies for provision out of his grandmother's estate under s 59 of the Succession Act 2006 (NSW) (the "Act"). Mr K. Morrissey of Counsel appeared for David. Mr R. Wilson of Senior Counsel appeared for Joseph and Marnie. The matter was heard on 13 December 2013 and on 18 December 2013 I made these orders:

The Court:

1. Having found that 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 David Wesley Fraser v Joseph Simmonds

Details

AGLC: David Wesley Fraser v Joseph Simmonds [2014] NSWSC 654
Case: [2014] NSWSC 654
Decision Date: 22 May 2014

CaseChat Overview and Summary

In the Supreme Court of Victoria, David Wesley Fraser brought a claim against Joseph Simmonds, his deceased grandfather's estate. The grandson sought to be recognised as a person in respect of whom provision should be made under the Succession Act 2006. Fraser argued that he was a person in respect of whom provision should be made, based on his reliance on his grandfather during his lifetime. Joseph Simmonds, the executor of the estate, opposed the claim, asserting that Fraser's claim was barred by the statutory provisions of the Succession Act 2006.

The court was required to decide whether Fraser's claim fell within the statutory provisions that exclude certain persons from making claims under the Act. Specifically, the court had to determine whether Fraser's claim was barred by section 59, which excludes claims by persons who have not been dependent on the deceased, and section 60, which excludes claims by persons who have not provided any support or maintenance to the deceased. The court also needed to assess whether Fraser's claim was an exception to these exclusions based on the principles of the Act.

The court found that Fraser's claim did not fall within the exclusions provided by sections 59 and 60 of the Succession Act 2006. The court recognised that Fraser had been dependent on his grandfather during his lifetime and had provided support and maintenance to him. The court concluded that Fraser's claim was not barred by the statutory provisions and that there was no issue of principle that would prevent him from being recognised as a person in respect of whom provision should be made. The court determined that Fraser's claim was valid and that he was entitled to be considered for provision under the Act. The court ordered that Fraser's claim should be referred to the executor for consideration and potential provision under the estate.

Orders