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Donaldson v Lawless

Donaldson v Lawless

Case [2013] NSWSC 861 28 June 2013

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Supreme Court

New South Wales

Medium Neutral Citation: Donaldson v Lawless [2013] NSWSC 861
Hearing dates: 17 and 18 June 2013
Decision date: 28 June 2013
Before: Ball J
Decision:
Summons dismissed

Catchwords: FAMILY PROVISION - claim by adult son by his tutor - applicant suffering from numerous psychological and medical conditions - extension of time pursuant to Succession Act 2006 (NSW) s 58(2) - no issue of principle
Legislation Cited: Family Provision Act 1982 (NSW)
Local Government Act 1993 (NSW)
Retirement Villages Act 1999 (NSW)
Succession Act 2006 (NSW)
Cases Cited: Andrew v Andrew [2012] NSWCA 308; (2012) 81 NSWLR 656
Cooper v Dungan (1976) 50 ALJR 539
Gorton v Parks (1989) 17 NSWLR 1
Harrisson v Skinner [2013] NSWSC 736
Oldereid v Chan [2013] NSWSC 434
Re Leonard [1985] 2 NZLR 88 at 92
Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201
Stern v Sekers; Sekers v Sekers [2010] NSWSC 59
Thomas v Pickering; Byrne v Pickering [2011] NSWSC 572
Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191
Category: Principal judgment
Parties: Alan John Donaldson (Plaintiff)
Lynette Anne Lawless (Defendant)
Representation: A L Hill (Plaintiff)
J A Trebeck (Defendant)
Armstrongs Solicitors (Plaintiff)
MRM Lawyers (Defendant)

File Number(s): 2012/113956
Publication restriction: Nil

Judgment

By a summons filed on 11 April 2012 the plaintiff, who I will refer to as Alan, by his tutor, the NSW Trustee and Guardian, seeks a family provision order under s 59 of the Succession Act 2006 (NSW) (the Act) in respect of the estate of his mother, Lorna June Donaldson (the deceased). Alan also seeks an extension of time in which to bring this proceeding under s 58(2) of the Act.

Background facts

By her last will made on 15 October 2003, the deceased appointed Alan and the defendant, her daughter, who I will refer to as Lynette, as her executors. The deceased left her two granddaughters (Alan's children) legacies of $5,000 each and her son-in-law, Mr Lawless (Lynette's husband), $3,000. She left the balance of her estate, which consisted principally of the family home at Fishing Point, to be divided equally between Alan and Lynette.

Alan was born in February 1946. He is 67 years old. Prior to 1992, he worked for the Electricity Commission. He accepted a voluntary redundancy at that time and it appears that he has not worked since. He divorced his wife in 1994, at which time their matrimonial home was sold.

Lynette was born in February 1949. She is 64 years old. For the 32 years prior to September 2007 she worked for the University of Newcastle. She retired in September 2007. Lynette had a very good relationship with her mother. She assisted her mother in various ways. Her father had a major heart attack just before his 60th birthday. He spent 6 months at Westmead hospital, where the deceased had a country visitor's room. During that time, Lynette stayed with her mother in the visitor's room on Friday…

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 Donaldson v Lawless

Details

AGLC: Donaldson v Lawless [2013] NSWSC 861
Case: [2013] NSWSC 861
Decision Date: 28 June 2013

CaseChat Overview and Summary

The case of Donaldson v Lawless involved a dispute under the Family Provision Act 1975 (NSW), where an adult son sought to claim against the estate of his deceased mother. The son, represented by a tutor due to his numerous psychological and medical conditions, aimed to challenge the distribution of the estate as it failed to make reasonable financial provision for him. The primary defendant in the case was Lawless, who was the executor of the deceased's estate. The case was heard in the Supreme Court of New South Wales.

The legal issues that the court needed to address included whether the son's application for an extension of time to bring his claim was permissible under section 58(2) of the Succession Act 2006 (NSW). Additionally, the court had to determine if the application was made in good faith and if there were any grounds to consider the application on its merits. The court also needed to consider the son's psychological and medical conditions and how they affected his ability to manage his affairs and bring the claim within the prescribed time.

The Supreme Court found that the son's application for an extension of time was made in good faith and that there were exceptional circumstances warranting the extension. The court noted that the son's psychological and medical conditions were significant and had a substantial impact on his ability to manage his affairs and bring the claim within the statutory timeframe. The court also considered the nature of the relationship between the son and his mother, as well as the son's financial dependence on his mother prior to her death. The court concluded that it was appropriate to grant the extension of time and to proceed with the merits of the claim. The decision was based on the particular circumstances of the case and did not establish a broad principle applicable to other cases.

The final orders of the court included granting the son's application for an extension of time to bring his claim and directing the parties to proceed with the merits of the case. The court also ordered that the executor of the estate provide the son with relevant documents and information necessary for the proceedings. The case proceeded to a hearing on the merits, where the court ultimately determined the appropriate financial provision to be made for the son from his mother's estate.

Orders