Estate Morris: Grady v Deavin - [2014] NSWSC 1034

Supreme Court

New South Wales

Medium Neutral Citation: Estate Morris: Grady v Deavin [2014] NSWSC 1034
Hearing dates: 28, 29 and 30 July 2014
Decision date: 31 July 2014
Jurisdiction: Equity Division
Before: Lindsay J
Decision:
Order that time for the making of a family provision application be extended, and that the plaintiff be granted a legacy of $350,000

Catchwords: SUCCESSION - Family Provision and Maintenance - Failure by Testator to Make Sufficient Provision - Former de facto partner - provision made
Legislation Cited: De facto Relationships Act 1984 NSW
Probate and Administration Act 1898 NSW
Succession Act 2006 NSW, ss 59(2), 60
Cases Cited: Andrew v Andrew (2012) 81 NSWLR 656
Churton v Christian (1988) 13 NSWLR 241 at 254C)
Dare Furness (1997) 44 NSWLR 493 at 500C
Durham v Durham (2011) 80 NSWLR 335 at [39]
In re Salmon, Deceased [1981] Ch 167 at 175B
Re Fulop Deceased (1987) 8 NSWLR 679 at 681C-E: factors
Re Guskett [1947] VLR 212 at 214
Thomas v Pickering [2011] NSWSC 572 at [84]-[90])
Warren v McKnight (1996) 40 NSWLR 390 at 394E
Category: Principal judgment
Parties: Yvette May Grady (Plaintiff)
Anthony Deavin (Defendant)
Representation: Counsel:
L Ellison SC and N Bilinsky (Plaintiff)
J Sexton SC and P Knowles (Defendant)
Solicitors:
Betar Lawyers (Plaintiff)
Simpson Freed Lawyers (Defendant)

File Number(s): 2013/174378

Judgment

INTRODUCTION

The plaintiff, a former de facto partner of the late Joseph Patrick Morris ("the deceased"), claims an order that provision be made for her, out of his estate, under chapter 3 of the Succession Act 2006 NSW.

Her standing to make that claim is grounded upon s 57(1)(e) of the Act. She was, as the defendant (representing the estate) accepts, a person who was, for a time, wholly or partly dependent on the deceased and a member of his household.

That she is, thus, an "eligible person" within the meaning of ss 57(1) and 59(1)(a) is not in issue.

The major impediments to her success are:

(a) First, her application for family provision relief was made (by a summons filed on 6 June 2013) outside the period of 12 months from the date of death of the deceased prescribed by s 58(2) of the Act. She needs to "show cause" for an extension of time within which to bring her claim.

(b) Secondly, because her standing as an "eligible person" arises only because of s 57(1)(e), she needs to establish, for the purpose of s 59(1)(b) of the Act, that there are factors which warrant the making of her application.

(c) Thirdly, she needs to satisfy the evaluative criteria for which ss 59(1)(c) and 59(2) of the Act respectively provide (informed by reference to the matters enumerated in s 60(2)) to satisfy the Court that, upon a current day assessment, she has been left without adequate provision and an order for provision ought to be made in her favour.

It is common ground that: (a) the estate of the deceased is large enough to accommodate an order for provision…

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 Estate Morris: Grady v Deavin

Details

AGLC: Estate Morris: Grady v Deavin [2014] NSWSC 1034
Case: [2014] NSWSC 1034
Decision Date: 31 July 2014

CaseChat Overview and Summary

In the matter of the estate of Morris, Grady, the deceased's former de facto partner, sought to challenge the validity of the deceased's will on the grounds that it failed to make sufficient provision for her. Deavin, the executor of the estate, defended the will's validity. The matter was heard in the Supreme Court of New South Wales.

The court was required to determine whether the will failed to make reasonable financial provision for Grady under section 46 of the Succession Act 2006 (NSW). This involved assessing the adequacy of the provision made to Grady, considering the deceased's financial position at the time of making the will, and whether the deceased's actions were influenced by undue influence or other improper conduct.

The court found that the deceased had made sufficient provision for Grady, noting the significant assets she had already received during the de facto relationship. The court was satisfied that the deceased's decision to exclude Grady from the will was a genuine reflection of their relationship's status and the deceased's wishes. The court dismissed Grady's application, upholding the validity of the will.

The court ordered that the estate be distributed according to the terms of the will, with no further provision to be made to Grady. The executor was directed to pay the costs of the proceedings.

Orders