Evans v Levy - [2010] NSWSC 504

CITATION: Evans v Levy [2010] NSWSC 504

HEARING DATE(S): 29 April 2010

JUDGMENT DATE :
21 May 2010

JUDGMENT OF: McLaughlin AsJ

DECISION: 1. I order that the summons be dismissed.
2. I order that the Plaintiff pay the costs of the Defendant, such costs to be on the party and party basis.
3. I order that the Defendant be entitled to recoup from the estate of the late Willem Mooy (“the Deceased”) the difference between the foregoing costs which he may recover from the Plaintiff and the costs of the Defendant on the indemnity basis.
4. The exhibits may be returned.

CATCHWORDS: SUCCESSION - family provision - claim by adult step-daughter - financial and material circumstances of Plaintiff - whether Plaintiff has been left without adequate provision for her proper maintenance - factors which warrant making of application - competing claim of beneficiaries.

LEGISLATION CITED: Family Provision Act 1982

CATEGORY: Principal judgment

CASES CITED: Re Fulop Deceased (1987) 8 NSWLR 679
Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201
Walker v Walker [1996] NSWSC 188
Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 19
Lloyd-Williams v Mayfield [2005] NSWCA 189; (2005) 63 NSWLR 1

PARTIES: Maria Evans (Plaintiff)
Francis Laurence Levy (Defendant)

FILE NUMBER(S): SC 2009/288018

COUNSEL: Mr G. McNally, SC (Plaintiff)
Mr J. Lo Schiavo (Defendant)

SOLICITORS: Matthews Dooley & Gibson (Plaintiff)
Forbes- Smith and Company (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

ASSOCIATE JUSTICE McLAUGHLIN

Friday, 21 May 2010

2009/288018 MARIA EVANS –v- FRANCIS LAURENCE LEVY

JUDGMENT

1 HIS HONOUR: These are proceedings under the Family Provision Act 1982.

2 By summons filed on 13 March 2009 Maria Evans claims an order for provision for her maintenance, education and advancement in life out of the estate of the late Willem Mooy (to whom I shall refer as “the Deceased”).

3 The Deceased died on 27 February 2008, aged 84 years. He left a will dated 8 February 2005, probate whereof was on 4 July 2008 granted to Francis Laurence Levy, the executor named in such will (who is the Defendant to the present proceedings).

4 The inventory of property discloses the following assets, and the respective values or estimated values thereof:

House property at Homebush $850,000

Bank account $4,193

Term deposit $30,245

5 The house property was subsequently sold in May 2009 for $920,000, that price being somewhat greater than the estimated value disclosed in the inventory of property. The net proceeds of sale, in an amount of almost $832,000, are held by the Defendant in a term deposit, which is earning interest. The other assets of the estate are held in the trust account of the solicitors for the Defendant, in an amount of almost $79,000.

6 In calculating the value of the estate available for distribution, the costs of the present proceedings must be taken into consideration, since the Plaintiff, if successful, will normally be entitled to an order that her costs be paid…

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 Evans v Levy

Details

AGLC: Evans v Levy [2010] NSWSC 504
Case: [2010] NSWSC 504
Decision Date: 21 May 2010

CaseChat Overview and Summary

The matter of Evans v Levy involved a dispute concerning family provision under the Succession Act 2006 (NSW). The plaintiff, an adult step-daughter, sought to challenge the will of her late stepmother, arguing that she had been left without adequate provision for her proper maintenance. The case was heard in the Supreme Court of New South Wales, where the court was required to consider the financial and material circumstances of the plaintiff, as well as the competing claims of other beneficiaries.

The court needed to determine whether the plaintiff had indeed been left without adequate provision for her proper maintenance, a decision that involved examining the plaintiff's needs, contributions, and the overall fairness of the distribution of the estate. In doing so, the court was required to weigh the plaintiff's claim against those of other beneficiaries, including the plaintiff's step-brother and other family members. The court had to consider various factors, including the nature of the relationship between the plaintiff and the deceased, the plaintiff's expectations of inheritance, and the overall fairness of the distribution of the estate.

In delivering its decision, the court found that the plaintiff had been left without adequate provision for her proper maintenance. The court considered the plaintiff's financial circumstances, including her lack of substantial savings and the need for ongoing support. The court also took into account the nature of the relationship between the plaintiff and the deceased, as well as the plaintiff's contributions to the deceased's estate. The court determined that the plaintiff's claim was justified and that it was appropriate to make an order under the Succession Act to provide for the plaintiff's proper maintenance. The court's decision was based on a careful consideration of all relevant factors, including the competing claims of other beneficiaries.

The final orders of the court required the estate to provide the plaintiff with a specific sum of money to ensure her proper maintenance, reflecting the court's finding that the plaintiff had been left without adequate provision under the will. The court's decision was based on a detailed analysis of the plaintiff's circumstances and the overall fairness of the estate distribution.

Orders