Eather v Maher - [2006] NSWSC 746

CITATION: Eather v Maher [2006] NSWSC 746

HEARING DATE(S): 24/07/2006

JUDGMENT DATE :
25 July 2006

JURISDICTION: Equity Division

JUDGMENT OF: Associate Justice Macready at 1

EX TEMPORE JUDGMENT DATE: 07/25/2006

DECISION: Paragraph 65

CATCHWORDS: Family Provision. Application by two children left out of the deceased's will. Consideration of circumstances surrounding the contact between the plaintiffs and deceased in last 12 years of his life. Held testator responsible for such difficulties. Order for provision made.

PARTIES: Grahame Barry Eather and Rochell Ann Campbell v Beryl Maher (Estate of the late Barry George Eather)

FILE NUMBER(S): SC 3048/2005

COUNSEL: Mr RD Wilson for plaintiffs
Mr D Williams for defendant

SOLICITORS: Turnbull Hill Lawyers for plaintiffs
Smith Dunlop Lawyers for defendant

THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

ASSOCIATE JUSTICE MACREADY

TUESDAY 25 JULY 2006

003048/05 - GRAHAME BARRY EATHER AND ANOR v BERYL MAHER - ESTATE OF BARRY GEORGE EATHER

JUDGMENT

1 HIS HONOUR: This is the hearing of an application under the Family Provision Act in respect of the estate of the late Barry George Eather who died on 9 November 2004 aged 64 years. The deceased was survived by his three children, his former wife and a de facto partner who lived with the deceased for two years before his death.

The will of the deceased

2 The deceased made his will on 11 October 2002 under which he appointed his sister the executor will. His house at 1 Ada Street Singleton was to be held for Valerie Eveleigh, his defacto partner, for her life or until she remarried. The remainder went to three of his son Michael's grandchildren; his insurance policies of $147,127.00 were left to his son Michael. The residue was to go to his sister.

Assets in the Estate

3 The house is valued at $280,000. There was a funeral fund benefit of $1,700 and the proceeds of the insurance policies of $147,127.05. This is a total of $428,827.05.

Liabilities

4 There were funeral and administration expenses of $17,256.09; legal costs of the defendant $47,441.00 and taxation liabilities of $15,550. That is a sub-total of $64,697.09. This leaves a net estate before the plaintiffs’ costs of $364,129.96. The plaintiffs’ costs are $47,236.00, leaving a net estate of $316,893.96.

Family History

5 The deceased, Barry George Eather, was born on 31 January 1940. He was brought up in Singleton and worked on a farm and then on a milk run and later in his life worked at Warkworth Mine till he retired at the age of 60 years.

6 His sister, Beryl Maher, was born on 20 May 1938. His defacto partner, Valerie Dawn Eveleigh, was born on 26 February 1943.

7 The deceased married Beryl Ann Eather, formerly McTaggart, on 30 March 1963 and they had three children, Grahame Barry Eather born on 4 October 1963, Michael Leslie Eather born on 4 February 1965, and Rochelle Ann Campbell born on 6 August 1967.

8 The deceased, his wife and family had a difficult life…

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 Eather v Maher

Details

AGLC: Eather v Maher [2006] NSWSC 746
Case: [2006] NSWSC 746
Decision Date: 25/07/2006

CaseChat Overview and Summary

In the case of Eather v Maher, the applicants were two children who had been omitted from the will of their deceased father. The matter was heard in the Family Court of Australia, where the applicants sought an order for adequate provision under the Family Provision Act 1969 (NSW). The deceased had passed away, leaving a substantial estate, but had not included the applicants in his will. The applicants argued that their exclusion was unjust and that they should receive a portion of the estate to meet their reasonable needs.

The primary legal issue before the court was whether the applicants had been treated fairly by the deceased in light of the Family Provision Act. The court needed to consider the relationship between the applicants and the deceased and the circumstances surrounding their interactions during the final twelve years of the deceased's life. The court also had to determine if the deceased's decision to exclude the applicants from his will was justified or if he was responsible for the difficulties that arose in their relationship.

The court found that the deceased had been responsible for the difficulties in the relationship with the applicants and that their exclusion from the will was unjust. The applicants had maintained sporadic contact with their father over the last twelve years, but the deceased had done little to foster or maintain this relationship. The court considered the applicants' reasonable needs and concluded that they should be provided for from the estate. The court made an order that the applicants receive a sum of money from the estate to meet their reasonable needs, ensuring that the deceased's decision to exclude them from his will was not left without remedy.

Orders