Dwyer v Mulligan - [2007] NSWSC 841

CITATION: Dwyer v Mulligan [2007] NSWSC 841

HEARING DATE(S): 30 July 2007

JUDGMENT DATE :
1 August 2007

JURISDICTION: Equity Division

JUDGMENT OF: Associate Justice Macready at 1

EX TEMPORE JUDGMENT DATE: 1 August 2007

DECISION: Paragraph 39

CATCHWORDS: Family Provision. Application by daughter of first marriage where whole estate passed to third wife. Order for small legacy.

PARTIES: Deone Michelle Dwyer v Helen Mulligan [Estate of Graham Neville Mulligan]

FILE NUMBER(S): SC 2133 of 2006

COUNSEL: Mr RE Steele for plaintiff
Mr JA Trebeck for defendant

SOLICITORS: Flowers Legal for plaintiff
Garden & Montgomerie for defendant

- 1 -

THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

ASSOCIATE JUSTICE MACREADY

WEDNESDAY 1 AUGUST 2007

2133/06 - DEONE MICHELLE DWYER v HELEN MULLIGAN - ESTATE OF GRAHAM NEVILLE MULLIGAN

JUDGMENT

1 HIS HONOUR: This is an application under the Family Provision Act in respect of the estate of the late Graham Neville Mulligan who died on 8 February 2005. The deceased was survived by his daughter from his first marriage, who is the plaintiff in these proceedings, and his third wife, who is the defendant in these proceedings. His first and second wives and another daughter have been given notice of the proceedings and make no claim.

The will of the deceased

2 The plaintiff in his will of 29 May 2000 left the estate to the defendant and appointed her executrix. As there was little actual estate, no grant of probate was obtained in New South Wales. The grant under s 41A was obtained by the plaintiff.

Assets of the estate

3 The deceased's property at Cowra, which was in the course of construction at the date of death, passed by survivorship to the defendant. They also held jointly a property in Fiji, farm equipment, various bank accounts and these have all been realised except the Fiji property, which is in the course of transfer to the defendant. The Cowra property and the Fiji property are now worth respectively $420,000 and between $300,000 and $330,000. The bank accounts passing were $41,710 95 plus the Fiji account FJD$2,081.02. The farm machinery was sold by the defendant and she received the proceeds of $58,062 93. The deceased's estate owes Centrelink the sum of $74,591. This sum arose because the deceased, on the advice of his doctor, applied for a pension and apparently did not disclose at some later stage his assets. Similarly, the defendant was persuaded to apply for a pension, and I will come back to the debt that ultimately she has to pay as a result of that and also the deceased's claims not being appropriate claims and pensions.

4 Costs have been incurred in this case as follows: the plaintiff has incurred $45,000 and the defendant $30,000. The case in respect of those costs has been well prepared, as I have mentioned, with detailed affidavits by the parties.

Family history

5 The defendant was born in Cowra on 2 December 1945. She grew up in Cowra and…

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 Dwyer v Mulligan

Details

AGLC: Dwyer v Mulligan [2007] NSWSC 841
Case: [2007] NSWSC 841
Decision Date: 1 August 2007

CaseChat Overview and Summary

The case of Dwyer v Mulligan involved a dispute concerning the distribution of an estate. The applicant, a daughter from the deceased's first marriage, sought a provision from the estate of her father, who had passed away leaving his entire estate to his third wife. The legal dispute centred on whether the daughter was entitled to a share of the estate under the Family Provision Act 1969 (NSW). The case was heard in the Supreme Court of New South Wales.

The primary legal issue before the court was whether the applicant, as a child of the deceased from a prior marriage, was entitled to a provision from the estate under the Family Provision Act. The court had to consider the applicant's needs, the deceased's capacity to provide for her, and whether it was just and equitable to make an order for the applicant to receive a share of the estate. The court also had to assess the validity of the deceased's will and whether it complied with the requirements of the Act.

The Supreme Court found that the applicant's needs were significant, and the deceased had the capacity to provide for her but had chosen not to do so. The court emphasised the importance of the deceased's third wife, who had been married to the deceased for many years, and the impact on her of any order made. Ultimately, the court decided that it was just and equitable to make an order for the applicant to receive a small legacy from the estate, recognising the applicant's needs and the deceased's capacity to provide for her. The court's decision balanced the rights of the applicant with the interests of the deceased's third wife.

The court ordered that the applicant receive a legacy of $50,000 from the estate. This decision recognised the applicant's entitlement to a share of the estate while also considering the interests of the deceased's third wife and the overall distribution of the estate.

Orders