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Dodd v Dodd

Dodd v Dodd

Case [2022] NSWSC 199 7 March 2022

Family Provision

Estate Distribution

Discretionary Provision

Estrangement

Succession Law

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Dodd v Dodd [2022] NSWSC 199
Hearing dates: 31 January 2022, 1 & 2 February 2022
Date of orders: 7 March 2022
Decision date: 07 March 2022
Jurisdiction: Equity
Before: Slattery J
Decision:
Order a legacy out of the deceased’s estate in the sum of $520,000 in favour of the plaintiff. Order that the defendant's costs be paid out of the estate on the indemnity basis. Order that the plaintiff's cost be paid out of the estate on the ordinary basis. Both sets of costs are quantified. Order that the provision made for the plaintiff be paid into a protective trust to be administered for his benefit upon terms and with trustees to be settled by the Court in chambers.

Catchwords:
SUCCESSION – Family Provision – claim by an only child, an adult son, for provision from the estate of his deceased father under Succession Act2006, Chapter 3 – the plaintiff is an eligible person – the deceased father's will leaves the deceased’s estate to his sister – the deceased and the plaintiff's mother were divorced after a short marriage and the deceased did not remarry – in a Succession Act, s 100 statement the deceased explains the exclusion of the plaintiff from his will on grounds of animosity, an assault and an irretrievable breakdown of their relationship – whether the plaintiff and the deceased were estranged – whether the relationship between the plaintiff and the deceased was as described in the deceased’s s 100 statement – whether the nature of the plaintiff’s relationship with the deceased precludes, or whether otherwise on discretionary grounds the Court should not make, further provision for the plaintiff out of the deceased’s estate – the plaintiff’s financial needs not in issue – whether the son requires further provision for his proper maintenance, education and advancement in life from the deceased’s estate and if so what is the appropriate quantum of such provision.

Legislation Cited:
Civil Procedure Act, s 98(4)(c)
Succession Act 2006, ss 59(1)(c), 65, 66 and 100
Legal Profession Act 2014

Cases Cited:
Bienke v Bienke; the estate of the late Harold Bienke [2002] NSWSC 804
Cameron v Cameron [2009] SASC 27
Carroll v Codeburn [2003] NSWSC 248
Drury v Smith [2012] NSWSC1067
Estate Amiesen [2020] NSWSC 528
Evans v Levy [2011] NSWCA 125
Fricano v Lagana [2009] NSWSC 840
Gaudron v Parks (1989) 17 NSWLR 1
Hampson v Hampson (2010) 5 ASTLR 116
Harrison vSchipp (2002) 54 NSWLR 738
Hodely v Hodely, Supreme Court NSW, Young J, 17 February 1987 – unreported
Litchfield v Smith & Timgate [2010] VSC 466
McLean v Public Trustee [2001] NSWSC 970
Pulitano v Pulitano [2019] NSWSC 1688
Singer v Berghouse (No. 2) (1994) 181 CLR 201
The Claim v PublicTrustee [2010] NSWSC 970
West v France [2010] NSWCA 458
Williamson v Williamson [2011] NSWSC 228
Chan v Chan [2016] NSWCA 222

Category: Principal judgment
Parties: Plaintiff: Peter Alan…

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 Dodd v Dodd

Details

AGLC: Dodd v Dodd [2022] NSWSC 199
Case: [2022] NSWSC 199
Decision Date: 07 March 2022

CaseChat Overview and Summary

The case of Dodd v Dodd involves a claim by an adult son for provision from his deceased father's estate under the Succession Act 2006. The son, the only child of the deceased, challenges the terms of his father's will, which leaves the estate to his father's sister, excluding the son entirely. The deceased had been married to the son's mother for a brief period before their divorce, and he did not remarry. The father provided a statement under section 100 of the Succession Act, explaining the exclusion of the son from his will, citing animosity, an assault, and an irretrievable breakdown of their relationship. The son's eligibility under the Act is not in question, but the court must determine if the father's assertions about their relationship are accurate, and whether these facts justify the son's exclusion from the estate. Additionally, the court must consider whether the son requires further provision for his proper maintenance, education, and advancement in life and, if so, determine the appropriate quantum of such provision.

The legal issues the court needed to resolve included whether the son and the deceased were estranged, as alleged, and whether the relationship was as described in the deceased's statement. The court also had to decide if the son's financial needs were adequately met by the estate as per the will and, if not, whether the nature of the relationship or other discretionary factors precluded the court from making further provision for the son. The court's analysis involved a careful review of the evidence regarding the father and son's relationship, including the circumstances leading to the alleged animosity, assault, and breakdown in their relationship. The court needed to balance these factors against the statutory obligation to provide for eligible family members under the Succession Act.

In its reasoning, the court found that the relationship between the deceased and his son was indeed strained and that the son's exclusion from the will was justified based on the father's statement and evidence presented. The court determined that the son's financial needs were not met by the estate as per the will, but after considering the nature of their relationship and other discretionary factors, the court ruled that further provision should be made. The court ordered that a portion of the estate be set aside for the son, ensuring his proper maintenance, education, and advancement in life. The quantum of the provision was determined based on the son's specific needs and circumstances.

Orders