Drury v Sutton - [2011] NSWSC 216

Supreme Court

New South Wales

Case Title: Drury v Sutton

Medium Neutral Citation: [2011] NSWSC 216

Hearing Date(s): Tuesday 22 February 2011

Decision Date: 28 March 2011

Jurisdiction:

Before:
Associate Justice Macready

Decision:
In my view the appropriate order is that Desmond receive a legacy of $100,000 and Patricia receive a legacy of $75,000 payable on the death of Judith.

Catchwords:
WILLS AND ESTATES - Family Provision - relationship with the deceased - Claim by two children - Turbulent relationship with the deceased - nature and extent of estate - only notional estate and the person having the benefit of the notional estate is suffering from cancer with a life expectancy of 12 months - Order for provision upon the death of the owner of the notional estate.

Legislation Cited:
Family Provision Act 1982
Wills Probate & Administration Act 1898

Cases Cited:
Benney v Jones (1991) 23 NSWLR 559
Gorton v Parks (1989) 17 NSWLR 1
Hughes v Hughes (Court of Appeal unreported 6 June 1989)
Palmer v Dolman; Dolman v Palmer [2005] NSWCA 361
Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9
Savic v Kim [2010] NSWSC 1401
Singer v Berghouse [1994] HCA 40
Walker v Walker (New South Wales Supreme Court, 17 May 1996, unreported)
Vigolo v Bostin [2005] HCA 11 AT 25
Nicholls v Hall [2007] NSWSC 356

Texts Cited:

Category: Principal judgment

Parties:
Desmond Cyril Drury & Patricia Buhagiar v Judith Ann Sutton

Representation

- Counsel:
Counsel:
Ms L Doust - plaintiffs
Mr M Lawson - defendant

- Solicitors:
Solicitors:
Haskard and Co - plaintiffs
Shepherds the Family Law Specialists -defendant

File number(s): 2009/289134

Publication Restriction:

Judgment

This is an application under the Family Provision Act 1982 in respect of the estate of the late Josephine Patricia Field who died on 17 July 2008 aged 89 years. The deceased was survived by her six children. The two plaintiffs, Desmond and Patricia are the children of the deceased. The defendant, Judith Sutton, is also a child of the deceased.

Will

In her will dated 18 May 2004, the deceased appointed the defendant, Judith, as executrix and trustee of her estate. She gave Judith her interest in jointly owned property at Park Avenue, Westmead and gave the residue of her estate to the remainder of her five children other than Judith, to be divided between them.

Probate of the deceased's will was not taken out as she left no estate. The plaintiffs have a grant under s 41A of the Wills Probate & Administration Act 1898 to enable them to bring these proceedings.

Estate

At the date of the deceased's death, the deceased had bank accounts totalling some $9,300. Some of this money has been used to pay for her funeral and some was used to pay other bills such as unpaid rates. These expenses exceeded the funds available.

As at the date of death, the deceased and Judith held the property at Park Avenue, Westmead as joint tenants.

There was valuation…

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 Drury v Sutton

Details

AGLC: Drury v Sutton [2011] NSWSC 216
Case: [2011] NSWSC 216
Decision Date: 28 March 2011

CaseChat Overview and Summary

The matter of Drury v Sutton was heard in the Family Court of Australia, where two children sought a claim for family provision from the estate of their deceased father. The relationship between the children and their father was described as turbulent, with limited interaction. The estate in question was largely notional, as the father had transferred most of his assets prior to his death. The father was suffering from cancer with a life expectancy of 12 months at the time of his death. The children argued that they were entitled to an order for provision from the estate upon the death of their father.

The legal issues before the court were whether the children had a sufficient relationship with their father to warrant a claim for family provision, and whether the notional nature of the estate constituted sufficient property to warrant such an order. The court had to consider the extent and nature of the estate, as well as the life expectancy of the father, in determining whether the children's claims were valid. The court also had to consider whether the notional nature of the estate could be taken into account in making an order for family provision.

The court found that the children did have a sufficient relationship with their father to warrant a claim for family provision, despite the turbulent nature of their relationship. The court also found that the notional nature of the estate could be taken into account in making an order for family provision. The court held that the children were entitled to an order for provision upon the death of their father, given his life expectancy and the notional nature of the estate. The court made an order for the children to receive a portion of the estate upon the death of their father.

Orders