Davidson v Sampson - [2012] NSWSC 481

Supreme Court

New South Wales

Medium Neutral Citation: Davidson v Sampson [2012] NSWSC 481
Hearing dates: 30 April - 1 May 2012
Decision date: 11 May 2012
Jurisdiction: Equity Division
Before: Stevenson J
Decision:
Orders made for immediate and deferred provision for the plaintiff

Catchwords: SUCCESSION - family provision - notional estate - plaintiff, son of the deceased, seeks a family provision order out of the estate or notional estate of the deceased under Succession Act 2006 - plaintiff received no provision out of the estate in the will - defendant is husband of the deceased to whom the deceased left entire estate - whether provision should be made for plaintiff and, if so, the nature of the provision to be made
Legislation Cited: Family Provision Act 1982
Succession Act 2006
Cases Cited: Andrew v Andrew [2011] NSWSC 115
Cooper v Dungan (1976) 50 ALJR 539 at 542
Hulme v Graham [2010] NSWSC 1281
Kastrounis v Foundouradakis [2012] NSWSC 264
Laidlaw v Kellie; Laidlaw (bht NSW Trustee & Guardian) v Rusiti [2011] NSWSC 740
Lajcarova v Todorov [2011] NSWSC 522
Marshall v Carruthers [2002] NSWCA 47
Ogburn v Ogburn [2012] NSWSC 79
Singer v Berghouse (No 2) (1994) 181 CLR 201
Category: Principal judgment
Parties: Tobias Boorne Davidson by his tutor Neale Davidson (plaintiff)
Steven Sampson as Executor of the Estate of Penelope Jane Boorne (first defendant)
Steven Sampson (second defendant)
Representation: Counsel:
Mr M K Meek SC (plaintiff)
Mr M A Bradford (defendant)
Solicitors:
Judd Commercial Lawyers (plaintiff)
Diamond Conway (defendant)

File Number(s): SC 2010/373425
Publication restriction: Nil

Judgment

Background and family details

These proceedings concern the estate of the late Penelope Jane Boorne, who died on 12 September 2010 at the age of 49.

For convenience and without intending any disrespect, I shall refer to the parties involved by their first names.

The plaintiff, Tobias Boorne Davidson ("Toby") is the only child of the deceased ("Penny").

Toby was born in mid 1998 and is now 13, almost 14.

Toby brings these proceedings by his tutor, Neale Davidson ("Neale"). Neale is Toby's natural father.

Neale met Penny whilst they were at school. For 21 years, between 1981 and 2002, they lived together in a de facto relationship. They separated in 2002.

Their only child was Toby. Toby was four years old when Penny and Neale separated.

During their relationship, Penny and Neale purchased a property in Naremburn. In about 1990 Penny and Neale sold the Naremburn property and purchased a property in Cremorne ("the Cremorne Property") for $440,000.

On 15 September 2008, Penny and Neale came to a property settlement pursuant to which, amongst other things, Penny retained the Cremorne Property.

In January 2006 Penny commenced living with the defendant, Steven Sampson ("Steve"). On 20 September 2008 Penny and Steve married. Steve had previously been married and has two non-dependant adult children, Daniel (now aged 29) and Bradley (now aged 28).

Steve is the executor of Penny's last will. The last will was made on 29 October 2008. By…

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 Davidson v Sampson

Details

AGLC: Davidson v Sampson [2012] NSWSC 481
Case: [2012] NSWSC 481
Decision Date: 11 May 2012

CaseChat Overview and Summary

The case involved Davidson, the son of a deceased, who sought a family provision order out of the estate or notional estate of the deceased under the Succession Act 2006. Davidson had received no provision from the estate in the will, which was left entirely to the defendant, the husband of the deceased. Davidson argued that provision should be made for him and sought to determine the nature of the provision to be made.

The central legal issues revolved around the interpretation and application of the Succession Act 2006. Specifically, the court needed to determine whether the notional estate included assets that were not formally part of the deceased's estate at the time of her death but which could be considered part of the estate for the purposes of a family provision claim. The court also had to consider the relevant factors under section 47 of the Succession Act 2006 to assess whether Davidson's claim was reasonable and just.

The court held that the notional estate could include assets that were not formally part of the deceased's estate at the time of her death, provided they could be reasonably considered part of the estate for the purposes of a family provision claim. The court found that the notional estate in this case included certain assets that were not formally part of the deceased's estate. After considering the relevant factors under section 47 of the Succession Act 2006, the court determined that it was reasonable and just to make a provision for Davidson. The court ordered that a specific sum be paid to Davidson out of the estate or notional estate.

Orders