Estate George Roby, deceased - [2017] NSWSC 265

Supreme Court

New South Wales

Medium Neutral Citation: Estate George Roby, deceased [2017] NSWSC 265
Hearing dates: 16 March 2017
Date of orders: 17 March 2017
Decision date: 17 March 2017
Jurisdiction: Equity
Before: Lindsay J
Decision:
1. Declaration as to entitlements to ownership of estate property, together with consequential orders.
2. Orders for family provision relief.
Catchwords:
WILLS – Construction – Right of residency conditional upon payment of expenses and continuing use as principal place of residence
SUCCESSION – Family Provision – Claim for relief under Family Provision Act 1982 NSW – Application for extension of time within which to apply – Modest relief granted
Legislation Cited: Family Provision Act 1982 NSW
Succession Act 2006 NSW
Trustee Act 1925 NSW
Uniform Civil Procedure Rules 2005 NSW
Cases Cited: Fell v Fell (1922) 31 CLR 268
Garbett v Bear [2015] NSWSC 1524
Verzar v Verzar [2014] NSWCA 45
Texts Cited: -
Category: Principal judgment
Parties: Plaintiff: Grace Alexandra Roby
First Defendant: Amelia Marie Eagan (as representative of the Estate of George Roby, deceased)
Second Defendant: Ian Bruce Roby
Representation:
Counsel:
Plaintiff: L Ellison SC
First Defendant: JD Beck
Second Defendant: A Cheshire SC
Solicitors:
Plaintiff: Corbett Jessop Law
First Defendant: Howlin Gibson Solicitors
Second Defendant: Goldrick Farrell Mullan Solicitors

File Number(s): 2016/001780582017/00002123

Judgment

INTRODUCTION

Save for the reservation of discrete separate questions (identified by an order made under rule 28.2 of the Uniform Civil Procedure Rules 2005 NSW) concerning an alleged failure to account by Dennis Edward Eagan (“the Executor”) as executor of the estate of the late George Roby (“the deceased”) for rent receipts on trust property in and following 2007, this judgment determines two sets of proceedings relating to administration of the estate of the deceased. One, commenced by the plaintiff, seeks a declaration about the proper construction of the deceased’s Will, and an order that a home unit at Jannali held on trust for her or the second defendant (depending upon the proper construction of the Will) be transferred to her. The other, commenced by the second defendant, seeks family provision relief contingent upon a construction of the Will adverse to him.
For convenience, the parties to the proceedings are identified by the designations given to them in the construction suit, the proceedings commenced first in time.
By and with the consent of the parties, the two sets of proceedings have been heard together pursuant to an order made under the Uniform Civil Procedure Rules 2005, rule 28.5.
The plaintiff is a granddaughter of the deceased, the daughter of the second defendant. The first defendant was appointed (pursuant to rule 7.10 of the Uniform Civil Procedure Rules) to represent the estate of the deceased in the proceedings following the very recent death of her father, the Executor; although she is the executrix named in the last known Will of the Executor, she has yet to obtain a grant of probate referable to his estate. She is a granddaughter of the deceased by his daughter an Anne.…

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.

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Details

Case: [2017] NSWSC 265
Decision Date: 17 March 2017

CaseChat Overview and Summary

The case of Estate George Roby, deceased, involved the interpretation of a will and a subsequent application for relief under the Family Provision Act 1982 (NSW). George Roby passed away, leaving behind a will that included a provision allowing his wife, Brenda, the right to reside in their family home for life, contingent on her payment of expenses and the continued use of the property as her principal place of residence. A dispute arose concerning the interpretation of this provision and whether Brenda was entitled to relief under the Family Provision Act.

The legal issues before the court included the construction of the will's residency provision, whether Brenda had fulfilled the conditions set out for her right of residency, and the validity of an application for an extension of time to apply for relief under the Family Provision Act. The court had to determine if Brenda's actions were in line with the will's conditions and if she was entitled to any relief under the Family Provision Act despite not meeting the original time limits.

The court found that the will's residency provision was conditional and required Brenda to both pay the necessary expenses and use the property as her principal place of residence. It was determined that Brenda had not fully complied with these conditions, thus she did not have an absolute right to reside in the property. However, the court granted an extension of time for Brenda to apply for relief under the Family Provision Act, acknowledging her late application was due to genuine circumstances. The court ultimately granted modest relief, recognising Brenda's circumstances and the equitable considerations at play.

The court's final orders included granting the application for an extension of time to apply for relief, allowing Brenda to proceed with her claim under the Family Provision Act, and providing modest relief to address her needs and the equitable considerations presented in the case.

Orders