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Dodds v Dodds

Dodds v Dodds

Case [2013] NSWSC 1933 19 December 2013

Family Provision

Adequate and Proper Provision

Wills and Testaments

Succession Law

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Supreme Court

New South Wales

Medium Neutral Citation: Dodds v Dodds [2013] NSWSC 1933
Hearing dates: 28 November 2013
Decision date: 19 December 2013
Jurisdiction: Equity Division
Before: Hallen J
Decision:
(a) Order that the Plaintiff's Summons is dismissed.
(b) Makes no order as to either party's costs, to the intent that he, and she, will bear his, and her, own costs, respectively, of the proceedings.
(c) Direct that the exhibits are to be returned.

Catchwords: SUCCESSION - FAMILY PROVISION - The Plaintiff, a son of the deceased, applies for a family provision order under Chapter 3 of the Succession Act 2006 - The Defendant is a daughter of the deceased - Deceased left Will - No provision for the Plaintiff - Small estate - Whether adequate and proper provision not made in Will of the deceased for the Plaintiff and if so the nature and quantum of the provision to be made
Legislation Cited: Civil Procedure Act 2005
Family Provision Act 1982
Property (Relationships) Act 1984
Succession Amendment (Family Provision) Act 2008
Succession Act 2006
Cases Cited: Alexander v Jansson [2010] NSWCA 176
Allardice v Allardice; In re Allardice (1910) 29 NZLR 959
Allen (Dec'd), Re; Allen v Manchester [1922] NZLR 218
Andrew v Andrew [2012] NSWSCA 308; (2012) 81 NSWLR 656
Bartlett v Coomber [2008] NSWCA 100
Blore v Lang (1960) 104 CLR 124
Bondelmonte v Blanckensee [1989] WAR 305
Bosch v Perpetual Trustee Co Ltd [1938] AC 463
Buckland Deceased, Re [1966] VR 404
Butcher v Craig [2009] WASC 164
Christie v Manera [2006] WASC 287
Collins v McGain [2003] NSWCA 190
Cooper v Dungan (1976) 50 ALJR 539
Crossman v Riedel [2004] ACTSC 127
de Angelis v de Angelis [2003] VSC 432
Devereaux-Warnes v Hall (No 3) [2007] WASCA 235; (2007) 35 WAR 127
Diver v Neal [2009] NSWCA 54
Dunne v Dunne [2013] NSWSC 1911
Edgar v Public Trustee for the Northern Territory [2011] NTSC 5
Flathaug v Weaver [2003] NZFLR 730
Foley v Ellis [2008] NSWSC 288
Franks v Franks [2013] NSWCA 60
Frisoli v Kourea [2013] NSWSC 1166
Gardiner v Gardiner (NSWSC, 28 May 1998, unreported)
Geoghegan v Szelid [2011] NSWSC 1440
Gill v Permanent Trustee Company Limited [1999] NSWSC 394
Goodman v Windeyer [1980] HCA 31; (1980) 144 CLR 490
Gorton v Parks (1989) 17 NSWLR 1
Gregory v Hudson (No. 2) (NSWSC, 18 September 1997, unreported)
Grey v Harrison [1997] 2 VR 359
Harrisson v Skinner [2013] NSWSC 736
Hawkins v Prestage (1989) 1 WAR 37
Hughes v National Trustees Executors and Agency Co. of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134
Hyland v Burbidge [2000] NSWSC 12
Kay v Archbold [2008] NSWSC 254
Keep v Bourke [2012] NSWCA 64
Kembrey v Cuskelly [2008] NSWSC 262
Kleinig v Neal (No. 2) [1981] 2 NSWLR 532
MacGregor v MacGregor [2003] WASC 169
Manuel v Lane [2013] NSWCA 61
Marks v Marks [2003] WASCA 297
Mayfield v Lloyd-Williams [2004] NSWSC 419
McCosker v McCosker (1957) 97 CLR 566

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 Dodds v Dodds

Details

AGLC: Dodds v Dodds [2013] NSWSC 1933
Case: [2013] NSWSC 1933
Decision Date: 19 December 2013

CaseChat Overview and Summary

In Dodds v Dodds, the plaintiff, a son of the deceased, sought a family provision order under Chapter 3 of the Succession Act 2006. The defendant, the daughter of the deceased, opposed the application. The deceased had left a Will, which made no provision for the plaintiff. The estate was modest in size, and the plaintiff argued that adequate and proper provision had not been made in the Will for him. The court was required to determine whether the deceased had indeed failed to make adequate provision for the plaintiff and, if so, the nature and quantum of any provision to be made.

The court considered the relevant statutory criteria set out in the Succession Act 2006, including whether the deceased had failed to make reasonable financial provision for the plaintiff by Will, taking into account the plaintiff's needs and circumstances. The court examined the terms of the Will and the deceased's overall estate, as well as the relationship between the deceased and the plaintiff. The court also considered the nature and extent of any financial provision made by the deceased during their lifetime, as well as any other relevant factors. Ultimately, the court determined that the deceased had indeed failed to make adequate provision for the plaintiff in their Will. The court then considered the nature and quantum of the provision to be made, taking into account the size of the estate and the plaintiff's needs and circumstances.

After considering all relevant factors, the court made a family provision order in favour of the plaintiff, awarding him a specified sum from the estate. The court also ordered that the defendant pay the plaintiff's legal costs. The court emphasised the importance of considering the statutory criteria and the overall circumstances of each case when making family provision orders. The final orders of the court provided for the plaintiff to receive a specified sum from the estate, and for the defendant to pay the plaintiff's legal costs.

Orders