Draper v Nixon - [1999] NSWSC 629

CITATION: Draper v Nixon [1999] NSWSC 629

CURRENT JURISDICTION: Equity Division

FILE NUMBER(S): 2276/97

HEARING DATE(S): 28, 29 and 30 October 1998, 9, 10 and 11 February 1999 (written submissions to 18 March 1999)

JUDGMENT DATE:
28 June 1999

PARTIES :

Jennifer Mary Draper (P)
Christine Dianne Nixon (D1)
Susan Long (D2)

JUDGMENT OF: Master McLaughlin

COUNSEL : Mr. J. Amor-Smith (P) (to 11 February 1999, thereafter plaintiff in person).
Mr. M. S. Willmott (D).

SOLICITORS: Eric Butler Solicitors (D).

CATCHWORDS: Family Provision; Claim by adult daughter; Responsibility of applicant to place before the Court as fully and as frankly as possible all available information concerning her financial and material circumstances; Conduct disentitling; Plaintiff attempted to have testator committed to a lunatic asylum; Competing claims of chosen beneficiaries; Assets of estate not sufficient to meet any order for provision; Notional estate; Prescribed transactions; Claim against notional estate not made within prescribed period; Attempt by plaintiff to use written submissions to place before the Court inadmissable evidence; Written submissions used by plaintiff as a vehicle to make insulting and totally unjustified and baseless allegations against members of the legal profession.

ACTS CITED: Family Provision Act 1982
Mental Health Act 1990
Testator's Family Maintenance and Guardianship of Infants Act 1916

CASES CITED: Blore v Lang (1960) 104 CLR 124
Singer v Berghouse (1994) 181 CLR 201

DECISION: 1. I order that the proceedings be dismissed.; 2. I order that the plaintiff pay the costs of the defendants.

- 36 -
SUPREME COURT OF
NEW SOUTH WALES
EQUITY DIVISION
MASTER McLAUGHLIN
Monday, 28 June 1999
2276/97 JENNIFER MARY DRAPER -v- CHRISTINE DIANNE NIXON AND SUSAN LONG
JUDGMENT
1 MASTER: These are proceedings under the Family Provision Act 1982. 2 The proceedings were instituted by summons filed by the plaintiff Jennifer Mary Draper on 1 May 1997. That summons did not name a defendant. The relief claimed in that summons was as follows:

1. An order making provision out of the estate of the late Allan Francis Draper for her maintenance and advancement in life pursuant to section 7 of the Family Provision Act 1982.

2. Further orders.

3. Costs.

3 The plaintiff is the eldest of the five children of the late Allan Francis Draper (to whom I shall refer as “the deceased”). 4 The deceased died (by throwing himself under a locomotive) on 2 November 1995. At the time of his death the deceased was a widower, aged 74. The deceased left a will dated 6 December 1993, probate whereof was on 4 July 1997 granted to Susan Long and Christine Dianne Nixon, the executors named in such will, who are the defendants to the present proceedings. 5 I have already observed that the summons did not name any defendants. Presumably the reason was that at the date of the filing of the summons, 1 May 1997, probate had not yet been granted to the executors named in the will of the deceased. However, the Court on 13 October 1997 made an…

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 Draper v Nixon

Details

AGLC: Draper v Nixon [1999] NSWSC 629
Case: [1999] NSWSC 629
Decision Date: 28 June 1999

CaseChat Overview and Summary

In the Supreme Court of New South Wales, Draper, as the plaintiff, sought a provision from the estate of her deceased father, Nixon, pursuant to the Family Provision Act. Draper, an adult daughter, sought a larger share of her father's estate than the provisions made in his will. The court was tasked with determining whether Draper's claim met the statutory criteria and if her conduct warranted disentitlement to any provision from the estate.

The primary legal issues revolved around Draper's entitlement to a provision from the estate, considering her conduct and the sufficiency of the estate to meet any claims. The court had to assess Draper's responsibility to provide all relevant information concerning her financial circumstances and whether her actions, including an attempt to have her father committed to a lunatic asylum, disqualified her from making a claim. Furthermore, the court had to determine if the estate was sufficient to meet the statutory provision and whether Draper's claim against the notional estate was made within the prescribed period. The court also had to address the admissibility of Draper's written submissions, which contained insulting and baseless allegations against members of the legal profession.

The court held that Draper's conduct was such that it disentitled her from making any claim against the estate. The court found that Draper had not fully and frankly placed all available information concerning her financial and material circumstances before the Court, and her actions, including the attempt to commit her father, were inappropriate and damaging. The court also held that the estate was not sufficient to meet any order for provision, as the competing claims of the chosen beneficiaries exceeded the available assets. Additionally, Draper's claim against the notional estate was not made within the prescribed period. The court rejected Draper's attempt to use her written submissions as evidence, finding them to be inadmissible and containing baseless allegations against members of the legal profession.

The court ultimately dismissed Draper's claim, finding her conduct and the other factors outlined above resulted in her being disentitled to any provision from the estate.

Orders