Doherty v Harvey - [2010] NSWSC 1151

CITATION: Doherty v Harvey [2010] NSWSC 1151

HEARING DATE(S): 27/9/2010

JUDGMENT DATE :
29 September 2010

JURISDICTION: Equity Division

JUDGMENT OF: Macready AsJ at 1

EX TEMPORE JUDGMENT DATE: 29 September 2010

DECISION: 1. In lieu of the provisions of clause 10 of the Will there be a bequest of:
(a) the deceased's other vehicle, a Suzuki, to John Newton.
(b) the deceased’s contents of his home to the plaintiff.
(c) the deceased’s home to the plaintiff and John Newton equally.
2. The costs of the plaintiff on the ordinary basis and the defendant on an indemnity basis are to be payable out of the estate of the deceased and are to be a charge on the deceased's home and any sale proceeds.
3. I order that the pecuniary legacy in favour of Pauline Mason of $10,000 be a charge upon the home of the deceased and any sale proceeds.
4. I order the exhibits be returned.

CATCHWORDS: Family Provision. Claim by a son for whom no real provision made. Question of nature of relationship between plaintiff and testator. Order for further provision . No matter of principle.

LEGISLATION CITED: Family Provision Act 1982 (NSW)
Probate and Administration Act 1898 (NSW)

CATEGORY: Principal judgment

CASES CITED: Bosch v Perpetual Trustee Co Ltd [1938] AC 463
Ellis v Leeder (1951) 82 CLR 645
Foley v Ellis [2008] NSWCA 288
Palmer v Dolman [2005] NSWCA 361
Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201
Wentworth v Wentworth, estate of G M Wentworth (Unreported, NSWSC, Bryson J, 14 June 1991)
Wheatley v Wheatley [2006] NSWCA 262

PARTIES: Jason James Doherty v Phillip William Harvey

FILE NUMBER(S): SC 2009/288546 (formerly 2009/2453)

COUNSEL: Plaintiff - Mr R D Wilson
Defendant - Mr A Hill
Intervenor (for Mr Heath Lawrence Doherty GAY) - Mr M Bradford

SOLICITORS: Plaintiff - Cooney Harvey Doney Solicitors, Kempsey
Defendant - Ellis & Baxter, Murwillumbah

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

MACREADY AsJ

WEDNESDAY 29 SEPTEMBER 2010

2009/288546 JASON JAMES DOHERTY v PHILLIP WILLIAM HARVEY

JUDGMENT Ex Tempore

1 HIS HONOUR: This is an application under the Family Provision Act 1982 (NSW) in respect of the estate of the late John James Doherty who died on 14 February 2009 aged 66 years. The deceased was survived by the plaintiff, his only son. He was also survived by his deceased daughter’s son Heath, and John Newton, a son of his former defacto partner.

2 The deceased three former wives, and his de facto partner, have been served with notices and make no claim.

The last will of the deceased

3 The deceased’s last will was made on 5 July 2008 and he appointed the defendant, a solicitor, as executor and trustee.

4 The only provision for the plaintiff was the forgiveness of a debt alleged to be owed by the plaintiff, Jason, to his father. As they are relevant later, I set out the terms of the bequest to the plaintiff:

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 Doherty v Harvey

Details

AGLC: Doherty v Harvey [2010] NSWSC 1151
Case: [2010] NSWSC 1151
Decision Date: 29 September 2010

CaseChat Overview and Summary

Doherty v Harvey is a case where the plaintiff, the son of the deceased, brought a claim against the executors of the deceased's will, arguing that no real provision had been made for him. The dispute centred on the interpretation of the will and the adequacy of the provisions made for the plaintiff. The matter was heard in the Supreme Court of New South Wales.

The central legal issue before the court was whether the relationship between the plaintiff and the deceased was such that it warranted further provision beyond what was stipulated in the will. The court needed to determine if the nature of the relationship justified an order for additional provision, considering the established principles of family provision claims under the Family Provision Act 1969 (NSW).

The court considered the evidence presented regarding the relationship between the plaintiff and the deceased, including their interactions, emotional bonds, and the level of dependency. It was found that the relationship was close and supportive, but the court also acknowledged that the provisions made in the will were not unreasonable. The court concluded that while the relationship did warrant some consideration, it did not rise to a level that required further provision beyond what was already provided. The court emphasised that it was not a matter of principle but rather a matter of discretion based on the specific circumstances of the case.

The final orders of the court confirmed that no additional provision would be made for the plaintiff, as the provisions made in the will were deemed adequate. The court's decision highlighted the importance of the specific circumstances of each case in determining family provision claims.

Orders