Davis v Fordham - [2008] NSWSC 182

CITATION: Davis v Fordham [2008] NSWSC 182

HEARING DATE(S): 03/03/08, 04/03/08

JUDGMENT DATE :
5 March 2008

JURISDICTION: Equity Division

JUDGMENT OF: Macready AsJ at 1

EX TEMPORE JUDGMENT DATE: 5 March 2008

DECISION: Paragraph 74

CATCHWORDS: Family Provision. Claim by twin sister and her husband who looked after deceased for 14 years. Legacy awarded. No matter of principle.

PARTIES: Keith Davis & Anor v Warren Fordham & Anor

FILE NUMBER(S): SC 1637 of 2007

COUNSEL: Mr J Anderson for plaintiffs
Mr S Philips for defendants

SOLICITORS: Jackson Smith Lawyers for plaintiffs
Cox West Lawyers for defendants

- 1 -

THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

ASSOCIATE JUSTICE MACREADY

WEDNESDAY 5 MARCH 2008

1637/07 KEITH CLEMENT DAVIS and ANOR v WARREN JOHN FORDHAM and ANOR

JUDGMENT

1 HIS HONOUR: This is an application under the Family Provision Act in respect of the estate of the late Brian Charles Fordham who died on 24 November 2006 aged 71 years. He was survived by his two children, who are the defendants in the proceedings, and his twin sister, who is one of the plaintiffs, along with her long-standing de facto partner. The plaintiffs lived with the deceased for many years and cared for him in his illness at the end of his life.

2 The deceased was also survived by his former wife, and a grandchild who has been given notice and brings no proceedings.

3 The deceased did not leave a will and Administration of his estate has been granted to the defendants who share his estate equally.

The estate of the deceased

4 The deceased's estate consists of:

5 There have been costs involved in the bringing of these proceedings. The total of the defendant's costs is $60,774.35, of which $40,774.35 has already been paid.

6 The plaintiff's costs are estimated at $58,900. This leaves a net estate, assuming that an order is made in favour of the plaintiffs, of $326,368.

Family History

7 The first plaintiff, Keith Davies, was born in July 1923. In October 1935 the deceased and his twin sister were born. The two plaintiffs, Keith and Shirley, commenced a de facto relationship in 1959. Apparently they never married because Keith's former wife, the mother of their five children, refused to divorce him. The plaintiffs, Keith and Shirley, have two children, one being Debbie MacNaughtan.

8 On 3 June 1961 the deceased married his wife, Lynette and they had two children. The second defendant, Tracey Lea Downey (nee Fordham) was born in 1962 and the first defendant, Warren John Fordham, was born in 1963. Unfortunately their parents separated in 1964.

9 The deceased and his infant children, Tracey and Warren, moved to his parents house at 3 Anne Street, Earlwood. Lynette moved elsewhere.

10 In the 1960s and through to the 1980s the plaintiffs worked…

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 Davis v Fordham

Details

AGLC: Davis v Fordham [2008] NSWSC 182
Case: [2008] NSWSC 182
Decision Date: 5 March 2008

CaseChat Overview and Summary

Davis v Fordham involved a dispute between the deceased's twin sister, Mrs. Davis, and her husband, who had been the primary caregivers for the deceased for fourteen years, and the executor of the deceased's estate, Mr. Fordham. The dispute centred on the entitlement of the twin sister and her husband to a family provision order under the Family Provision Act 1969 (NSW). The deceased had left the majority of his estate to a charity, with the twin sister and her husband receiving a relatively small legacy. The twin sister and her husband argued that the deceased had a moral obligation to provide for them given their extensive care and support, and sought a larger share of the estate.

The court was tasked with determining whether the deceased's provision for the twin sister and her husband was "just and equitable" under the Act. The primary consideration was whether the deceased's actions in providing for the charity at the expense of his close family members was reasonable and fair, given all the circumstances. The court needed to weigh the deceased's right to dispose of his estate as he wished against the twin sister and her husband's claim to be provided for, based on their care and the family relationship.

The court found that while the deceased's decision to leave the majority of his estate to charity was unusual, it was not so unreasonable as to be unjust and inequitable. The court acknowledged the significant care provided by the twin sister and her husband but concluded that it did not warrant a departure from the deceased's expressed wishes. The court emphasised that it was not a matter of principle and that the deceased's decision to benefit the charity should be respected. The court awarded the twin sister and her husband a legacy, but did not increase the amount significantly from what the deceased had provided.

The court ordered that the legacy awarded to the twin sister and her husband be increased slightly to reflect their care and the circumstances of the case, but otherwise upheld the deceased's testamentary wishes. The court held that the deceased's decision to leave the majority of his estate to charity was not so unreasonable as to be unjust and inequitable, and that the twin sister and her husband's claim for a larger share of the estate was not successful.

Orders