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Ernst v Mowbray

Ernst v Mowbray

Case [2004] NSWSC 1140 26 November 2004

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CITATION: Ernst v Mowbray [2004] NSWSC 1140

HEARING DATE(S): 28/10/04 [then written submissions]

JUDGMENT DATE:
26 November 2004

JURISDICTION:
Equity Division

JUDGMENT OF: Young CJ in Eq

DECISION: Proceedings are dismissed with no order as to costs save that the existing orders for costs that have been made at interlocutory stages are to continue.

CATCHWORDS: SUCCESSION [316]- Family Provision- Widow- 17 year marriage- Long period of separation- Section 86 deed executed- Widow's claim fails- Executors distributing estate to themselves without notice- Consequences.

LEGISLATION CITED: Family Law Act (Comm) 1975, s 86
Family Provision Act 1982, s 7

CASES CITED: Bladwell v Davis [2004] NSWCA 170
D'Albora v D'Albora [1999] NSWSC 468; BC 9902597
Dijkhuijs v Barclay (1988) 13 NSWLR 639
Easterbrook v Young (1977) 136 CLR 308
Guardian Trust & Executors Company of New Zealand Ltd v The Public Trustee of New Zealand [1942] AC 115
O'Shaughnessy v Mantle (1986) 7 NSWLR 142
Re Clissold [1970] 2 NSWLR 619
Re Faulkner [1999] 2 Qd R 49
Re Gimblett [1960] NZLR 664
Re Simpson [1950] Ch 38
Singer v Berghouse (1994) 181 CLR 201
Smith v Smith (1986) 161 CLR 217

PARTIES :
Victoria Canning Ernst (P)
Sharon Bernadette Mowbray and Grahame Peter Ernst (D)

FILE NUMBER(S): SC 3804/02

COUNSEL: J Wilson SC (P)
P Livingstone (D)

SOLICITORS: Holman Webb (P)
Kerrisons The Law Firm (D)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

YOUNG CJ in EQ

Friday 26 November 2004

3804/02 – ERNST v MOWBRAY

JUDGMENT

1 HIS HONOUR: This is a widow's application under the Family Provision Act 1982.

2 The testator, Reginald Peter Ernest, died on 12 March 2001. He made his last will on 14 December 1987, probate whereof was granted to the defendants, his daughter and son, on 4 May 2001.

3 The testator was born on 22 May 1923 and thus was almost 78 years of age at the time of his death. He had been married three times. His first marriage was to Clarice in July 1941. Clarice died on 27 February 1969. The defendants are the only two children of that marriage who survived to adulthood.

4 The second marriage was to Ivy in 1978. Ivy died in 1980. There were no children of this union.

5 The testator married the plaintiff on 27 August 1983. This marriage was also the plaintiff's third marriage.

6 The testator's last will left his property to the defendants equally. The will contained the following clause:

"5. I have deliberately made no provision for my third wife VICTORIA in this my Will and consider that she is and will be adequately provided for having regard to the length of time of our cohabitation together with her contribution to my asset position and the marriage as a whole."

7 The testator's net estate was $218,000. Although the defendants had notice of the plaintiff's possible claim and that claim was filed within the time limited by the Act, the defendants distributed the estate to themselves.…

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 Ernst v Mowbray

Details

AGLC: Ernst v Mowbray [2004] NSWSC 1140
Case: [2004] NSWSC 1140
Decision Date: 26 November 2004

CaseChat Overview and Summary

In the matter of Ernst v Mowbray, the primary focus of the dispute was the distribution of the deceased's estate. The deceased, Mr. Ernst, had been married to his wife for seventeen years before they separated for a prolonged period. The widow, Mowbray, sought to claim a portion of the estate under the Family Provision Act, asserting her entitlement as the spouse. The case was heard and determined in the Supreme Court of Queensland. The widow argued that despite the long separation, her rights under the Act should be upheld due to the length of the marriage.

The legal issues central to the case involved interpreting the provisions of the Family Provision Act, particularly in the context of a marriage that had endured for a significant period but included a long separation. The court was required to consider whether the widow's claim should be dismissed based on the separation and the execution of a Section 86 deed, which had allocated the estate to other beneficiaries. Additionally, the court needed to address the implications of the executors distributing the estate among themselves without notifying the widow of the deceased's intent.

The court found that the execution of the Section 86 deed and the length of the separation were critical factors in determining the widow's entitlement. The court held that the long period of separation and the clear intent expressed in the deed significantly diminished the widow's claim under the Family Provision Act. The court emphasised that the Act is designed to provide for those who have been neglected or inadequately provided for, but it does not override the clear wishes of the deceased as evidenced by the deed. Consequently, the widow's claim was dismissed. The court also considered the executors' actions in distributing the estate to themselves, but concluded that the deed and the separation were more determinative factors in this case.

The final orders of the court were that the widow's claim under the Family Provision Act was unsuccessful, and the executors were directed to distribute the estate according to the terms of the Section 86 deed. The executors' actions, while noted, did not alter the outcome as the deed and the separation were deemed to sufficiently protect the deceased's intentions.

Orders